EU Directive on Transparent and Predictable Working Conditions

The Government has announced the transposition of EU Directive 2019/1152 on Transparent and Predictable Working Conditions into national legislation under the European Communities Act 1972. This will make the Directive applicable to Irish law.

The Government had until August 1st, 2022 to introduce legislation implementing the Directive. While Ireland has missed this deadline some of the provisions of the Directive are already covered by Irish Employment Legislation introduced over the last two years. These includes the new statutory sick pay, which commenced on the 1st January 2023, the new public holiday for St Brigid’s Day; new rights around redundancy for people laid off during the pandemic; the recent protection of workplace tips and gratuities, and the issuing of a mini statement of terms of employment within 5 days of commencement.

Transposing the Transparent and Predictable Working Conditions Directive into Irish law is expected to give workers:

• more complete information on the essential aspects of the work, which is to be received early by the worker, in writing;
• a six month limit to the length of probationary periods at the beginning of a job
• the right to seek additional employment, with a ban on exclusivity clauses and limits on incompatibility clauses;the right to know, in a reasonable period in advance, when work will take place – i.e. for workers with very unpredictable working schedules, as in the case of on-demand work;
• anti-abuse legislation for zero-hour contract work;
• the right for employees to request to be transferred to a form of employment with more predictable and secure working conditions, where available, and receive a reasoned written reply is such a request is denied;
• the right to receive mandatory training, cost-free, that is required to carry out the work for which he or she is employed.

Probationary Periods

Under Article 8 of the Directive, this limits the length of the probation period at the beginning of a job to a maximum of six-months. However, there will be scope for probationary periods to last longer than six months, where justified by the nature of the employment, such as where in the interests of the worker. It should also be possible for probationary periods to be extended correspondingly in cases where the worker has been absent from work during the probationary period, for instance because of sickness or leave, to enable the employer to assess the suitability of the worker for the task in question.

In the case of fixed-term employment relationships of less than 12 months, the length of the probationary period must be adequate and proportionate to the expected duration of the contract and the nature of the work. The “Day 5” statement has also been amended to now include information relating to the duration and conditions relating to a probationary period, if applicable.

Obligation to Provide Information

The Directive expands the information required to be given to an employee on commencing employment and introduces new provisions including the ability to request transition to another form of employment with more predictable and secure working conditions (Article 12) and, the right to receive mandatory training (Article 13).

Parallel Employment

The Directive also provides the right to take up parallel employment, subject to the maximum working time restrictions of the Organisation of Working Time Act 1997. However, exceptions will be permitted on objective grounds such as health and safety, protection of business confidentiality, the integrity of the public service and the avoidance of conflict of interests.

Anti-penalisation provisions are also included, with stronger penalties for non-compliance, restriction of zero hours contracts and the provision of more precise information on hours of work,and prohibits adverse treatment of an employee who does take up other employment.

Next Steps for Employers

 Whilst this legislation has not yet been signed off, it would be no harm for employers and HR Practitioners to consider these changes when forward planning. Where a company’s terms and conditions provide for a probation period which is in excess of six-months, or for a six-month probation period that can be extended, if such an extended period cannot be justified, these clauses will need to be updated as this practice will no longer be permitted. For more, see our Employers Guidance on Probation Periods and Contracts page here or contact us on +353 1 887 0690.

We also offer advice on DISMISSAL DURING PROBATION - An Employers Guide

Please feel free to contact us at MSS for advice and guidance when reviewing your Terms and Conditions and HR documentation.