EU Directive on Transparent and Predictable Working Conditions

The EU Directive on Transparent and Predictable Working Conditions includes a range of minimum requirements to protect workers, which will cause additional legislation to be introduced. The key provisions of this Directive include a six-month limit on probationary periods, the right of an employee to request to be transferred to a form of work with more predictable and secure working conditions and a ban on exclusivity clauses. EU Member States were given a deadline of 1 August 2022 to transpose the new rules into their national legislation. There has been no commencement order yet, therefore, employers should wait for the implementing legislation and any related government guidance to be published before making any changes.

Many of the requirements in the new Directive are already provided for under The Terms of Employment (Information) Acts 1994- 2014 and The Employment (Miscellaneous Provisions) Act 2018. Such legislation sets out that all workers have the right to receive a statement of their terms and conditions within a week of starting work. The list of required particulars for all workers and employees includes core terms such as place of work, paid leave entitlement, pay, notice and details of working pattern, including in particular whether it is predictable or unpredictable. Where the work pattern is entirely or mostly unpredictable, the employer must state the number of guaranteed paid hours, the pay for work performed in addition to those guaranteed hours, and the reference hours and days within which the worker may be required to work. However, under this Directive the list of information employers must provide to workers and the notification obligations has been extended;

Under the legislation, employers will be obliged to provide employees no later than seven days after their start date the following in writing:

• Start date (not just the duration of the contract).
• Details and duration of probationary periods.
• Place of work, or where there is no main place of work, a statement indicating that an employee is required or permitted to work at various places.
• Title, grade, nature or category of the work or a brief description of the work.
• For predictable working patterns:
  • The length of the standard working day or week
  • Overtime and shift changes.
• For unpredictable working patterns:
• The number of guaranteed paid hours per week
• The remuneration for hours worked in excess of the guaranteed hours
• The hours / days within which the worker may be required to work
• The minimum amount of advance notice provided to employees about working hour

Prohibition on probationary periods exceeding six months

There will be a prohibition on probationary periods exceeding six months unless on an exceptional basis this is justified by the nature of the employment or the worker’s interests. Absence during the probationary period will justify an extension of equivalent duration.

Any probation periods in fixed term contracts must be proportionate to the overall duration. Furthermore, the Directive stipulates that a probationary period will be prohibited in the event of a fixed term contract renewal.

Right to request transition to more predictable and secure position
Workers with at least six months service with the same employer and who have completed their probationary period will have a right to request to transition to a more predictable and secure position, provided an opportunity is available. Where an employer declines this request, the employer must provide detailed written reasons, generally within one month of the request, explaining the rationale behind the decision.

Employer must pay for mandatory training
Where mandatory training is prescribed under EU law, national legislation or collective agreements, the employer must pay for it. It must count as working time and, where possible, it must take place during working hours. The Directive introduces a new requirement that the employer no later than one month of the start date of employment must provide the employee with their mandatory training entitlements in writing

Variation in terms of employment
Any variations to the terms of employment must be notified to the worker at the earliest opportunity and, at the latest, on the day on which the change takes effect.

Removal of the ban on exclusive service contracts of employment
It will become unlawful to prohibit workers from taking up employment with other employers outside working hours, unless this can be justified by objective grounds such as health and safety, protecting business confidentiality or avoiding conflicts of interests.

Should you require any further advice, you can contact Fiona Mulligan, HR Executive, on (01) 605 1557 or fiona.mulligan@sfa.ie for further information on any of the above.