Employment Law Changes 2023

The European Union (Transparent and Predictable Working Conditions) Regulations 2022

The European Union (Transparent and Predictable Working Conditions) Regulations came into effect on 16^th December 2022 with a purpose of enhancing transparency and predictability in employment while accommodating labour market adaptability needs of employers. Firstly, regulations amended two crucial statements in providing detailed information on employment terms and conditions. The “Day 5” statement, initially established under the Employment (Miscellaneous Provisions) Act 2018, mandates employers to outline five fundamental terms of employment within five days of the commencement of employment. An additional five terms have now been introduced to be included in this statement through the EU Regulations.

All remaining terms of employment specified in the Terms of Employment (Information) Act, 1994, must be furnished within one month of the initiation of employment, a change from the previous requirement of two months. Notably, terms of employment must now include details on training provided by the employer; in the case of temporary contracts, the identity of the user undertaking i.e. the person or firm hiring an agency worker; in the case of unpredictable work pattern; 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, the reference hours and days; and the minimum notice to be given to the employee before the start of a work assignment.

The regulations have also amended the terms of employment for employees working outside of Ireland, notably, that the written statement provided to employees who are required to work outside the State must now also include the country or countries in which the work outside the State is to be performed and its duration.

In addition, any changes to terms of employment must now be communicated to employees on or before the day the change takes effect, a notable shift from the previous one-month notification requirement post the change coming into effect.

Probationary Period

The regulations now impose a six-month limit on probationary periods for private sector employees, extendable up to 11 months only on exceptional basis where it would be considered to be in the best interest of the employee. However, where an employee is absent from work during the probationary period due to a statutory leave, such period may be extended for the duration of the employee’s absence. Public sector workers face a maximum 12-month probationary period. In the case of fixed-term contracts, probation must be proportionate to the expected duration of the contract and the nature of work and cannot be included in any renewal of a fixed-term contract.

Parallel Employment

Exclusivity clauses limiting employees’ ability to work for other employers are restricted. Employers can enforce restrictions only if they are proportionate and based on objective grounds, such as health and safety objectifications or protecting business confidentiality, and the details of the restriction alongside objective justification must be included in the contract.

Transition to Another Form of Employment

Employees completing probation period and in continuous service for at least six months may now request more predictable working conditions, with employers required to respond within one month. This request can be made once every twelve months.

Mandatory Training

Where an employer is required by law or by a collective agreement to provide training, they must ensure it is free of cost, counts as working time, and, when possible, occurs during working hours.

Amendment to the Organisation of Working Time Act 1997

As well as the minimum notice period of 24 hours specified in the OWTA, any work assignment notified to an employee must now take place within the reference hours and days notified to the employee as part of their written terms. Where the notice of a work assignment provided to an employee is not within the minimum notice period of 24 hours or the work assignment is to take place outside the reference hours and days, the employee has the right to refuse the work assignment without adverse consequences.

The Sick Leave Act 2022

The Sick Leave Act came into force on 1^st January 2023, granting employees 3 days of Statutory Sick Pay at a rate of 70% of their wage but subject to a daily threshold of €110 per day, including any regular bonus or allowance but excluding any pay for overtime or commission. The leave entitlement is increasing to five days on 1^st January 2024. It is intended that the entitlement will increase to seven days in 2025 and ten days in 2026.

The Act applies to all employees who have rendered continuous service for a period of 13 weeks or more. The eligibility for sick leave starts from the initial day of absence and does not necessitate consecutive days. To avail of statutory sick leave, employees must provide a medical certificate from an Irish registered medical practitioner, affirming the employee’s incapacity to work.

Employers with an existing sick leave policy in place are excused from the responsibilities outlined in the Act if they can demonstrate that their current company sick pay benefits are either as favourable or more favourable than the statutory entitlement.

The Protected Disclosures (Amendment) Act 2022

The new legislation came into effect on 1^stJanuary 2023 in alignment with the EU Whistleblowing Directive. Significant changes included broader categories of wrongdoings, protections extended for various individuals that may not be employed by your organisation, and a reversed burden of proof as employers must now disprove penalisation claims. Find out more in our Protected Disclosures blog here.

Commencing on 17^th December 2023 there is an extension of statutory obligations outlined in the Protected Disclosures (Amendment) Act, 2022. The extension encompasses employers with 50 or more employees, as opposed to the previous threshold of 250 or more. Employers falling within this scope are mandated to establish internal reporting channels and procedures for facilitating protected disclosures. These procedures include prompt acknowledgment of receipt of disclosure within seven days and assigning a designated person(s) who will provide feedback to the discloser keeping them informed of the investigation’s progress and outcomes within three months of receiving the disclosure.

The Government published updated Statutory Guidance in November 2023 for public bodies and prescribed persons under the Protected Disclosures Act 2014, as amended, which can be viewed here.  Whilst aimed at public bodies, the guidance is useful for all employers who come within the scope of the legislation.

The Work Life Balance and Miscellaneous Provisions Act 2023

This comprehensive Act, signed into law on 4^th April 2023, introduces provisions for domestic violence leave, leave for medical care purposes, extended breastfeeding breaks, and the right to request remote and flexible working arrangements.

Domestic Violence Leave

Domestic Violence Leave came into effect on 27^th November 2023 providing for five days leave for an employee who is suffering, or has suffered, domestic violence, in any period of 12 consecutive months, at their full rate of pay. There is no mandatory service requirement for accessing this leave, and employees are not required to provide supporting documentation for their leave requests. However, it is permissible for an employer to request an adequate limited explanation from the employee to determine if eligibility for domestic violence leave exists.

The purpose of this leave is to empower the employee (or a ‘relevant person’ as defined in the legislation) to seek medical aid, access support services and counselling, temporarily or permanently relocate, seek legal advice or assistance, reach out to An Garda Síochána, or obtain a safety or barring order from the courts. Find out more information on Domestic Violence Leave in our blog.

Leave for Medical Care Purposes

Employees are now entitled to up to five days unpaid leave for purposes of providing personal care or support to persons who are in need of significant care or support for a serious medical reason. Such persons include the child, spouse, civil partner, cohabitant, parent, grandparent, sibling or housemate of the employee. An employee does not need to meet a particular service requirement before they are entitled to take leave for medical care purposes and might be requested to provide relevant evidence in relation to the person and the nature of the care required.

Extension of Breastfeeding Breaks

Employees who are breastfeeding are entitled to take daily breaks or a reduction in their working hours for the purposes of breastfeeding a child or expressing breast milk to 104 weeks post-birth (previously this was 26 weeks). Employees are entitled to paid time off as a break in their place of work for 1 hour each working day. The daily paid time off can take the form of one break of 60 minutes or as shorter breaks which together make up 60 minutes. Alternatively, employees are entitled to a reduction in working hours by 1 hour each working day without loss of pay for the purposes of breastfeeding outside of their place of work.

Transgender Men’s (Who Have Given Birth) Access to Maternity Leave Entitlements

Existing maternity protection legislation has been amended to now ensure transgender men who have obtained a gender recognition certificate and subsequently given birth fall within its scope and can avail of the employment law protections surrounding maternity and pregnancy related leave and entitlements. 

Upcoming Legislation to be Enacted

Right to Request Remote Working

The provisions of employees’ rights to request remote working have not yet come into force.  When operational, all employees will have a right to request remote working and employers will be required to have regard to a Code of Practice when considering such requests.  The Code of Practice has not yet been published, but it is expected that it will have a statutory status and that it will include guidance for employers and employees on their obligations. The employees will need to have completed six months of continuous service before they are entitled to request a remote working arrangement. They will be required to submit the request in writing not later than 8 weeks before the proposed commencement of such arrangement. Normally, the employers will have to either approve the request in writing or refuse it with setting out reasons for the decision in writing no later than 4 weeks after receiving the request.

Right to request flexible working arrangements for caring purposes

The Work Life Balance and Miscellaneous Provisions Act 2023 also introduced the right to request flexible working arrangements for caring purposes, for parents and carers.  This right will apply to employees who have six months’ continuous service with their employer.  Similarly, employees must submit a signed request in writing not later than 8 weeks before the proposed commencement of the flexible working arrangement outlining the form of arrangement requested, the commencement date and duration, while the employers will normally have to respond within 4 weeks of receiving the request. This provision will come into force following the publication of the Code of Practice, as referred to above. 

National Minimum Wage

The National Minimum Wage Order 2023 sets the national minimum hourly rate of pay from 1 January 2024:

• Aged 20+ = €12.70
• Aged 19 = €11.43
• Aged 18 = €10.16
• Under 18 = €8.89

The Government announced the introduction of a national living wage for employees at the end of 2022. The National Living Wage will be set at 60% of hourly median wages. It will be introduced over a four-year period and will be in place by 2026, at which point it will replace the national minimum wage.

This article was written by Mislav Magas, HR Consultant at Action HR Services

Contact any of our consultants if you need expert HR support to help you navigate the ever-evolving employment law landscape.

DISCLAIMER:
The information in this article is provided as part of the 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 on 8th January 2024.