Catherine Hayes Linda Hynes August 3 2022 Implementation update on Transparent and Predictable Working Conditions Directive Lewis Silkin LLP | Employment & Immigration - Ireland Catherine Hayes, Linda Hynes Employment & Immigration IntroductionEmployees covered by DirectiveKey provisions of DirectiveCommentIntroductionThe EU Directive on Transparent and Predictable Working Conditions aims to improve employees' working conditions by promoting more transparent and predictable employment. While Ireland has not yet published draft legislation implementing the Directive, this article provides an overview of the changes that are likely to be introduced.EU member states have until 1 August 2022 to implement the EU Directive on Transparent and Predictable Working Conditions. Key provisions of the Directive include employers needing to provide specific information to employees, the banning of exclusive service and limiting probationary periods to six months.While Ireland has not yet introduced draft legislation to implement the Directive, some of the requirements are already part of Irish law.It is not yet known what redress, including possible compensation, the Workplace Relations Commission will be able to order against employers who fail to comply with the Directive, once implemented.Employees covered by DirectiveThe Directive applies to employees. Genuinely self-employed people fall outside the scope of the Directive. Ireland may also exclude employees who work less than three hours per week (which are actual, pre-determined hours) in a reference period of four consecutive weeks, which is permitted by the Directive.Key provisions of DirectiveProbationary periodsProbationary periods will be limited to six months. For fixed-term contracts, probationary periods must be proportionate to the term and nature of the work.Each EU country has the option to allow for a longer probationary period, on an exceptional basis, where it can be justified by the nature of the employment or the interests of the worker. There is also the option for EU countries to allow for an extension to a probationary period if the employee has been absent due to illness or leave (for a period corresponding to the absence).Most employers already include a six-month probationary period, with the option to extend. Any extensions will only be possible if the employee is on leave (assuming the Irish legislation includes this option). Employers will have to review probationary periods more closely.Exclusivity of serviceEmployers will not be able to prevent employees from working for another employer, or to treat an employee adversely for working for another employer. Each EU country has the option to set out some qualifications to limit this right for reasons that include:health and safety;protection of confidentiality information; oravoiding conflicts of interests.Many employers currently include an exclusive service clause. Therefore, depending on what the Irish legislation sets out, employers may need to revisit their exclusive service clauses to ensure that they are enforceable.Unpredictable work patternsZero-hours contracts are already effectively banned in Ireland and the Directive expands employees' rights further.Employees with unpredictable hours:cannot be required to work unless they have been given information about the hours and days that they may be required to work, and sufficient notice of the work assignment;must be compensated if the employer cancels work without reasonable notice; andcan request more predictable and secure working conditions (provided that they have completed six months' service and have passed their probationary period).Written notification to employeesEmployers in Ireland already have an obligation to provide certain information within five days of starting employment and additional information within two months of starting employment. Employers can satisfy both requirements with one statement provided within five days of starting employment.The Directive complicates the position by adding two further deadlines:"basic" information that has to be provided within seven days of starting employment; and"supplemental" information which has to be provided within one month.The imposition of four different deadlines will cause headaches because of the duplication of obligations. Depending on how the Irish legislation deal with this, the following obligations will apply once the Directive takes effect:Five daysSeven daysOne monthTwo monthsName of the employer and employeeName of the employer and employeeTraining entitlements provided by the employer (number of training days and training policy)If no place of work, that the employee can work at various placesAddress of the employer in IrelandPlace of work or that employee can determine their own place of workPaid leave entitlementsTerms and conditions relating to paid leave and on sickness absenceThe expected duration of a temporary contract or, for a fixed term contract, the date the contract endsFor a fixed term contract, the date the contract ends or the expected durationProcess to be following for termination of employment, including notice periodsNotice periodsRate or method of calculation of pay and the pay reference period for the purposes of the National Minimum Wage ActDetails about pay including frequency and payment methodApplicable collective agreementsAny collective agreementsNumber of hours that the employer reasonably expects the employee to work in a normal working day and normal working weekFor predictable working patterns:length of standard working day or week; andany arrangements for overtime and shift changes.For unpredictable working patterns:number of guaranteed paid working hours;pay for hours worked in excess of guaranteed paid working hours;hours and days that the employee may be required to work; andminimum advance notice provided for working hours and deadline for cancelling working hours.Identity of social security institutions receiving contributions and protections relating to social security provided by the employerTerms and conditions on pensions Length of probationary period, and applicable conditionsFor agency workers – the identity of the end-user entityThe employee can request a written statement of average hourly pay Start date Start date Either job title, grade and nature or category of the work, or a description of the work The title of the job or nature of the work for which the employee is employedChanges to termsAny changes to terms which are required to be provided under the Directive must be communicated at the earliest opportunity, and at the latest, on the day that the change takes effect.Currently, employers are only required to give notice of changes to certain mandatory terms within a month of the change, although in practice most employers give advance notice of the change; therefore, this is likely to be low impact. This requirement is separate to any obligation to consult on the change to terms (if required).Training obligationsIf an employer is required to provide training to employee, this training must be provided free of charge to the employee, during working hours where possible, and is working time. Most employers follow this practice already. This right does not extend to training required for employees to obtain, maintain or renew a professional qualification unless the employer is required by law or collective agreement to provide that training.Employees sent overseasEmployers are already required to provide certain information to employees who work outside of Ireland for more than one month. The Directive expands this obligation to include providing information about local law remuneration entitlements, applicable allowances, arrangements for expensing travel, food and accommodation, as well as providing a link to an official national website, which sets out the terms and conditions which apply to workers posted to the host country.CommentEmployers should review any template contracts to assess the changes that may need to be made in light of the Directive. However, it is important for the implementing legislation to be published (and any guidance) before making any changes.For further information on this topic please contact Catherine Haye or Linda Hynes at Lewis Silkin by telephone (+353 1566 9875 and +353 1566 9877) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.