Ireland: Implementation update on the Transparent and Predictable Working Conditions Directive

European Union (EU) member states have until 1 August 2022 to implement the EU Directive on Transparent and Predictable Working Conditions (the Directive). 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.

We don’t yet know 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 the Directive

The 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 the Directive

Probationary periods

Probationary 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 service

Employers 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 including, but not limited to, health and safety, protection of confidentiality information or avoiding conflicts of interests.

Many employers currently include an exclusive service clause. Therefore, depending on what the Irish legislation sets out, employers may need to re-visit their exclusive service clauses to ensure that they are enforceable.

Unpredictable work patterns

Zero 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 they may be required to work, and sufficient notice of the work assignment;
• must be compensated if the employer cancels work without reasonable notice; and
• can request more predictable and secure working conditions (provided they have six months’ service and have completed their probationary period).

Written notification to employees

Employers 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 which 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, once the Directive takes effect the following obligations will apply:

Changes to terms

Any 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, so this is likely to be low impact. This requirement is separate to any obligation to consult on the change to terms (if required).

Training obligations

If 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 overseas

Employers 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. 

Next steps for employers

We recommend reviewing any template contracts to assess the changes that may need to be made in light of the Directive. However, we suggest waiting for the implementing legislation to be published (and any guidance) before making any changes.