S.I. No. 686/2022 – European Union (Transparent and Predictable Working Conditions) Regulations 2022
Is now enacted as off the 16th December 2022.
This will now alter the Terms of Employment (Information) Act 1994 including some working conditions for the employees, such as the length of probationary periods set out in contracts of employment.
- New Rules on Probationary Periods
In the private sector, the probationary periods of employees should not exceed 6 months save in exceptional circumstances. Often an employer would ask for the right to extend the period without just cause or have the right to extend at the commencement of the employment.
With effect, the probationary period can only on an exceptional basis, be longer than six months, it cannot exceed 12 months and must be in the interest of the employees’ rights and objectives. Such as protected leave during the probationary period (e.g., maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave), but the employer can look to extend the period of probation when an employee is absent.
The next issue is the Protection of Employees (Fixed-Term Work) Act 2003 and probation, the length of a probationary period in a fixed-term contract must now be proportionate to the expected duration of the fixed-term contract and the nature of the work. Examples of 6 months’ probation in a 6 month fixed terms contract. This will also impact on extended contracts under the regulation. It is impracticable unless there is a change in duties and functions to imposed additional probation’s.
If an employee was subject to a probationary period which exceeded 6 months on the date or after the Regulations came into force and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the date the probationary period was due to expire, but not later than February 1st 2023.
An employer may restrict an employee from taking up employment with another employer, outside the work schedule established with the first named employer, where such restriction (in this section referred to as an ‘incompatibility restriction’) is proportionate and is based on objective grounds.
Where an employer imposes an incompatibility restriction on an employee details of the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based) shall be included in the contract of employment, or
The employer shall provide to the employee a statement in writing setting out the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based).
In this section ‘objective grounds’ includes the following grounds –
(a) health and safety, (b) the protection of business confidentiality, (c) the integrity of the public service, (d) the avoidance of conflicts of interests, (e) safeguarding productive and safe working conditions, (f) the protection of safety of patients and people receiving care from the health service.
The protection of national security, the protection of critical national infrastructure, the protection of energy security, the administration of vital public service functions, compliance by the employer and the employee with any applicable statutory or regulatory obligations.
The compliance by the employee with any professional standards for the time being in force, and notwithstanding the generality of paragraphs (a) to (l), ‘objective grounds’ for the purposes of a contract of employment entered into by the Health Service Executive or a service provider includes the following grounds:
(i) the protection of patient health and safety;
(ii) the State’s objectives of –
(I) the promotion of public welfare by improving public health,
(II) the removal of inefficiencies and inequalities in the delivery of healthcare services, and
(III) assisting in the implementation of a universal healthcare service in which patients are treated on the basis of health needs.
Employers should also be aware that the Regulations have also introduced changes in respect of the following matters:
Specific rules on information to be provided to employees where working patterns are unpredictable;
Where an employer is required by law or collective agreement to provide training to an employee, the training must be provided to employees cost free and the time spent training will count as working time; and
Restrictions on exclusive employment clauses. Additional minimum employment terms to be provided in writing to employees within 5 days of commencing work, the minimum period within which full terms of employment must be provided to an employee has been reduced to one month from commencing employment, employees can make a request for more predictable and secure working conditions, where available, and are entitled to receive a reasoned written reply from the employer.