EU reforms require attention of employers in Ireland

The Department of Enterprise, Trade and Employment has confirmed that primary legislation will be introduced into Irish law by 1 August 2022 to implement the EU’s 2019 directive on transparent and predictable working conditions. Ireland, along with other EU member states, will be required to ensure that staff probation periods typically last no longer than six months, subject to limited exceptions, from that date.

The department has opened a consultation seeking views on the benefits of capping the maximum probation period at six months in line with the EU directive. The consultation, which is open to responses until 3pm on Monday 25 October, also sets out details of new rights for employees and new obligations on employers deriving from the EU reforms, including around the information employers have to provide to new employees.

An overview of the 2019 directive

The 2019 directive intends to give employees in the EU the right to:

• more information on the essential aspects of their work in writing and at an early stage;
• a limit being set on the length of their probationary period;
• seek additional employment, with a ban on exclusivity clauses and limits on incompatibility clauses;
• to be given reasonable notice of when work will take place, for those with unpredictable working schedules, as in the case if on-demand work;
• anti-abuse legislation for zero hour contract work;
• receive a written reply to a request to transfer to another more secure job; and
• receive mandatory training cost-free where their employer has a duty to provide it.

Maximum duration of any probationary period

Irish employment law does not currently prescribe any maximum period of probation that employers can apply to new joiners. However, employers often include a probationary period in contracts of employment. Those probationary periods are typically set to last between three and 11 months. Generally, an employee will obtain rights to bring a claim for unfair dismissal under Irish employment law once they have served 12 months of continuous service.

Under the new directive, EU member states are required to ensure that, where an employment relationship is subject to a probationary period as defined in national law or practice, that period shall not exceed six months.

The directive also requires that, in the case of fixed-term contracts, the length of any probationary period should be proportionate to the expected duration of the contract and the nature of the work.

In the case of the renewal of a contract for the same function and tasks, the directive prohibits the introduction of a new probationary period.

However, employers may, on an exceptional basis, provide for longer probationary periods where this is justified by the nature of the employment, or in the interest of the employee. Where the employee has been absent from work during the probationary period, employers may provide that the probationary period can be extended correspondingly, in relation to the duration of the absence.

The introduction of a maximum probationary period will have a big impact on how employers address probationary periods in their contracts of employment, particularly employers that tend to extend the initial probationary period when assessing an employee’s performance. We would advise employers to monitor this development carefully and to keep their current position under review.

Written terms of employment

Though the 2019 directive is already in force, it will only have practical effect once new national laws have implemented it.

One area where there is existing law, in both the EU and Ireland, is in relation to the information employers must share with new employees.

The EU’s 1991 directive concerning an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship continues to apply currently, though it is due to be repealed from 1 August 2022, with the relevant updated provisions in the 2019 directive replacing the older law.

In Ireland, the 1991 directive was implemented by The Terms of Employment (Information) Act of 1994, which was subsequently updated by The Terms of Employment (Information) Act of 2014 and The Employment (Miscellaneous Provisions) Act 2018. The 2019 directive, however, requires the employer to provide more complete information on the essential aspects of the work to the employee in writing at the beginning of the employment relationship. This necessitates fresh primary legislation in Ireland.

Under the 2019 directive, employers will be required to inform employees of the “essential aspects of the employment relationship” in writing. The information to be provided in writing can be provided by electronic means. The basic information should be relayed to reach employees as soon as possible and at the latest within a calendar week from their first working day. The remaining information should be relayed to the employees within one month of their first working day.

The information to be provided is similar to the current requirements. It includes;

• the identities of the parties to the employment relationship;
• the place of work: where the employee has no fixed or main place of work, or where he or she is free to determine his or her place of work, he or she should receive information about arrangements, if any, for travel between the workplaces;
• the title, grade, nature or category of work for which the employee is employed or a brief
• specification or description of the work;
• the date of commencement of the employment relationship;
• in the case of a fixed term employment relationship, the end date or the expected duration period;
• in the case of temporary workers, the identity of the user undertakings, when and as soon as known;
• the duration and conditions of the probation period, if any;
• the training element provided by the employer;
• the amount of paid leave or, where this cannot be indicated when the information is given, the procedures for allocating and determining such leave;
• the procedure by which the employment relationship is terminated and the method for determining notice periods;
• the remuneration and method of payment to which the employee is entitled;
• the standard working day or week where the work pattern is predictable and any arrangements for overtime or shift changes;
• where the work pattern is unpredictable, the employer shall inform the employee of the principle that work schedules are variable, the number of guaranteed hours, the remuneration for work performed in addition to guaranteed hours, the reference hours and days which the employee may be required to work, and the minimum notice period before the start of a work assignment or the deadline for cancellation of the work assignment;
• any collective agreements governing an employee’s conditions; and
• where it is the responsibility of the employer, the identity of the recipient agency for social security contributions and any protection relating to an employee’s social security arrangements.

Written by Jason McMenamin of Pinsent Masons in Dublin.