How is New Employment Legislation Affecting You and Your Company in 2023?

1. Transparent and Predictable Working Conditions

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 became law on 16th December 2022. This legislation transposed EU Directive 2019/1152 on Transparent and Predictable Working Conditions in the European Union. The purpose of this legislation is to extend protection to individuals in all forms of work by providing more transparent and predictable working conditions while at the same time ensuring employers can continue to be adaptable.

 

Who does the legislation apply to?

The legislation applies to every worker with an employment contract or an employment relationship and includes employees, workers, casual workers, domestic workers, platform workers, trainees, and apprentices.

 

Who does the legislation not apply to?

These new changes do not apply to employees with less than four consecutive weeks’ service or working hours that amount to an average of 3 hours or less per week.

 

What’s changed regarding probation periods?

With effect from 1st August 2022 probationary periods may no longer exceed six months (for public service employees this will be 12 months) except on an exceptional basis and where to have a longer probation would be in the interest of the employee. Employers should review contracts for whom staff have a probationary period of longer than six months, which were drafted before 16th December 2022. Where a member of staff has completed at least 6 months’ service, they will be deemed to have ‘passed’ their probation period on 1 February 2023.

The employer may extend an employee’s probationary period should the employee be absent from work during the probationary period due to a specified provision. The probationary period can be extended by the employer for the duration of the employee’s absence while on statutory leave. A specified provision includes maternity leave, adoptive leave, paternity leave, parental leave, parents leave, carers leave, sick leave. Employers should review contracts to ensure they include a statement to this effect.

 

Day 5 Statement

Employers were previously obliged to outline; the full names of the employer and employee; the address of the employer; the expected duration of the contract; the rate or method of calculating

pay, and the ‘pay reference period’, the expected normal length of an employee’s working day and week. In line with the new legislation, Day 5 statements must also now include:

1. The duration and conditions of the probationary period, if applicable.

2. The place of work or, confirmation that the employee is employed at various places or is free to determine his or her place of work.

3. The job title or type of work that the employee is employed for, or a brief job description outlining work.

4. The start date of the contract of employment.

5. Any requirements relating to hours of work (including overtime).

 

One Month Statement

All other terms of employment are now required to be given to the employee within one month of commencement of employment. Previously these had to be given to the employee within two months of commencement of employment.

 

The one-month statement must now include the following:

1. The training provided by the employer.

2. In the case of a temporary contract of employment, the identity of the user undertakings i.e., the person or firm hiring the agency worker.

3. If the working pattern of the employee is completely (or mostly) unpredictable, an acknowledgement that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours. It should also include the reference hours and days within which the employee may be required to work, and the minimum notice to be given to the employee before the start of a work assignment.

4. The identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

It is also required that contracts/statements outlining terms and conditions are signed and dated by/on behalf of the employer, in writing, and communicated on paper or, in an electronic form.

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.

 

What about mandatory training?

Employers must review what mandatory training they are required, by law, or by a collective agreement, to provide to employees, to enable them to carry out their role e.g., Health and Safety training. Relevant training must be provided to the employee free of charge, be considered as working time, and where possible, occur during working hours. The legislation also introduced a new requirement that the employer must provide the employee with their mandatory training entitlements, in writing, within a month of the start date of employment.

 

Parallel Employment

Under the new legislation, an employer can no longer prohibit an employee from working for another employer, outside their work schedule, or treat an employee adversely for working for another employer. If this restriction is imposed, it must be proportionate and based on objective grounds of which must be provided to the employee in writing either in their contract of employment or a written statement.

 

Transition to Another Form of Employment

An employee, has been in continuous service with an employer for at least six months and who has completed their probationary period, can request employment with more predictable and secure working conditions and the employer must reply to this request in writing within one month of receiving the request.

 

What about Fixed Term Contracts?

For fixed term contracts the length of probationary periods cannot exceed 6 months and must be proportionate to the duration of the contract. In addition, where a fixed-term contract is renewed for the same tasks and functions, the renewed fixed-term contract should not contain a new probationary period.

 

Changes to the Organisation of Working Time Act 1997

Section 17 of the Organisation of Working Time Act 1997 (OWTA) is amended by section 13 of the 2022 Regulations. Employees that are not given the minimum notice of 24 hours of a work assignment as outlined in the Act or if the work takes place outside of the predetermined reference hours and days outlined in the employee’s contract, those employees have the right to refuse to work by the employer without adverse consequences unless there were unforeseen circumstances that justify the employer in not providing the minimum notice or providing work outside the reference hours and days.

 

So, what do you need to do?

Employers should review their existing contracts, policies, procedures, and handbooks and amend based on the requirements of this new legislation.

Other Relevant Legislative Changes

 

Increase in National Minimum Wage.

The national minimum hourly rate has been increased to €11.30 effective, 1 January 2023. Contracts, payroll systems and HR systems will need to be amended to reflect this change for relevant employees. Those employees under 20 years of age may receive sub minimum rates of pay. See table below for details of new minimum hourly rates of pay.

 

Category of employee Hourly rate %

Aged 20 and above €11.30 100%

Aged 19 €10.17 90%

Aged 18 €9.04 80%

Aged under 18 €7.91 70%

 

Statutory Sick Pay Scheme

The Sick Leave Act 2022 provides a statutory sick pay scheme which entitles employees to paid sick pay by their employer. This is being phased in over a four-year period, starting with three days paid sick leave per year commencing on 1st January 2023, rising to five days paid sick leave in 2024- and

seven-days paid sick leave in 2025. Employers will eventually cover the cost of 10 sick days per year in 2026. The phasing in of the statutory sick pay scheme is for the purpose of assisting employers, particularly SME’s, to plan ahead and manage the additional cost.

 

How much are employers obliged to pay?

The employer must pay the employee at a rate of 70% of an employee’s normal pay, subject to a maximum of €110 per day.

 

What are the criteria?

Employees must obtain a medical certificate to avail of statutory sick pay, and the entitlement is subject to the employee having a minimum of 13 weeks’ service regardless of the number of hours worked.

 

How can the leave be taken?

Statutory sick leave days can be taken as consecutive days or non-consecutive days.

 

Records

The employer must keep records of the statutory sick leave taken by each of its employees for a period of 4 years.

 

Anti-penalisation

An employer cannot penalise or threaten to penalise an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

Get in touch with Action HR Services if you have any questions in relation to those changes. Our HR Consultants are delighted to support you to ensure your business complies with all legislative requirements.

 

DISCLAIMER: The information in this article is provided as part of Action HR Services Blog. Specific queries should be directed to a member of the Action HR Services Team, and it is recommended that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 21/02/2023.