Signing of the Transparent and Predictable Work Conditions Regulations 2022
On 16 December 2022, the government signed into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022 to fulfill Ireland's obligations under EU Directive 2019/1152 on transparent and predictable working conditions.Employers should be aware of the changes resulting from this legislation. In addition to creating new employee rights, the Regulations amend employers' obligations under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, and the Protection of Employees (Fixed-Term Work) Act 2003.
With limited exceptions, the Regulations apply to all employees in Ireland, except for those with less than four consecutive weeks' service or working fewer than three hours per week.
Employers must now provide general written terms of employment to their employees one month after they begin employment. The information employers must provide within 5 days of the start of employment and within one month has also been changed.
The written statement of employment must be:
- signed and dated by the employer,
- in writing, and
- It may be transmitted on paper or electronically, provided the employee has access to it, the employee can store and print it, and the employer retains proof of its transmission or receipt.
If an employee's terms are changed, the employer must notify the employee in writing as soon as the change takes effect.
Probationary Periods
There have been significant changes to probationary periods. It is no longer possible to extend probationary periods beyond 6 months except in exceptional circumstances, and even then not beyond 12 months unless this would be beneficial to the employee. The duration of employee absence can be taken into consideration when extending a probationary period. In the event that an employee (other than a public servant) is subject to a probationary period exceeding 6 months and has completed at least 6 months service, the probationary period will end on the earlier of:
- the date on which the probationary period was due to expire, or
- 1 February 2023
As a final point, the Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
Mandatory Training
If an employer is required by law or by a collective agreement to train an employee, this training must include the following:
- be provided to the employee free of cost,
- count as working time, and
- where possible, take place during working hours.
Parallel Employment & "Incompatibility Restrictions"
The Regulations provide that an employer must not:
- prohibit an employee from taking up employment with another employer, outside the work schedule established with the first employer, or
- subject an employee to adverse treatment for taking up employment with another employer.
An employer may prohibit an employee from taking a job with another employer if the restriction is proportionate and objective. Where an employer imposes an "incompatibility restriction":
- details of the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based) must be included in the contract, or
- the employer must provide a statement in writing setting out the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based).
According to the Regulations, objective grounds include health and safety, business confidentiality, and avoiding conflicts of interest.
Collective Agreements/REAs
If the employment in question is covered by a collective agreement approved by the Labour Court or a Registered Employment Agreement, then the Regulations are disapplied in respect of probationary periods, the right to seek additional (parallel) employment, and the right to request transfer to a job with more predictable and secure working conditions and training.
Through more transparent and predictable employment, the Directive aims to improve working conditions. Among other things, it expands the information that must be provided to employees upon beginning employment and introduces new provisions such as the right to request transition to another form of employment with more predictable and secure working conditions (Article 12) and the right to mandatory training.
Employment outside the State and Changes for Posted workers
Also included in the Regulations is a new obligation to provide information to posted workers. Employees who are posted workers (under the European Union (Posting of Workers) Regulations 2016) must be given the following additional information:
- Employee's remuneration according to the host country's legal requirements,
- Travel, board, and lodging allowances and reimbursement arrangements specific to postings
- The URL of the single official national website (IMI Regulation, Regulation (EU) No 1024/2012) that is developed by the host Member State.
Additionally, the Regulations require employees working outside the State for a period of not less than one month to receive more information. It is now required of the employer to also tell the employee which country or countries the employee will be working in outside the State.
Right to request transfer to more predictable and secure working conditions
Once in a 12 month period, an employee who has been employed continuously by an employer for at least 6 months and has completed their probationary period (if any) may request a form of employment with more predictable and secure working conditions. Within one month of receiving such a request, an employer must provide a reasoned written response. When the same worker submits a similar request again, and the situation remains the same, employers may provide an oral reply.
The Finance Act 2022: Changes You Need to Know in 2023
Last year, the Finance Act 2022 was signed into law, and employers should be aware of certain things, such as an increase in the amount of qualifying vouchers employers can offer.
For the upcoming year, here are some changes employers need to know:
1. The Small Benefits Exemption
As of 2022, the annual limit for the Small Benefits Exemption was raised from €500 to €1000. The number of vouchers employers can offer each year has also been increased from one to two as part of this change.
2. Employer Reporting Requirements
The small gift exemption, travel and subsistence expenses, and the remote working daily allowance of €3.20, are all benefits employers are required to record and report to Revenue. The format and manner in which these benefits will be reported are subject to the commencement order and Revenue's guidance.
3. Bike to Work Scheme
As of 2023, the Bike to Work scheme will include cargo bicycles and e-cargo bicycles, reducing the threshold of tax-free benefits to €3,000.
4. Covid-19 Related Lay-Off Payment Scheme (CLRP)
Beginning in 2022, the Covid-19 Related Lay-Off Payment Scheme (CLRP) will be tax-exempt. As a result of Covid-19 related restrictions on layoffs, these payments are available to individuals who lost the opportunity to accrue reckonable service as a result of layoffs under the Redundancy Payments (Amendment) Act 2022. Those affected by this change include:
(a) those made redundant since 13 March 2020, or by 31 January 2025; and
(b) Those who were laid off during the COVID-19 restrictions from 13 March 2020 to 31 January 2022 but lost the opportunity to build reckonable service.
Ringing in the New Year with the EU Whistleblowing Directive
The Protected Disclosures (Amendment) Act 2022 commenced operation on the 1st of January 2023.
This new legislation makes significant changes to the operation of the legal framework for the protection of whistleblowers in Ireland, the Protected Disclosures Act 2014. These changes have important implications for employers in the public and private sectors and for persons prescribed under section 7 of the Act.
The Protected Disclosures Act 2014 (the “Act”) protects workers from retaliation if they speak up about wrongdoing in the workplace. Persons who make protected disclosures (sometimes referred to as “whistleblowers”) are protected by this law. They should not be treated unfairly or lose their job because they have made a protected disclosure.
The most material changes to the Act include:
- the introduction of a requirement for many employers to have a whistleblowing policy
- the creation of a new criminal offence for non-compliance
- the introduction of new avenues of redress for whistleblowers who allege they have been penalised and the reversal of the burden of proof in such claims.
What is a protected disclosure?
Making a “protected disclosure” refers to a situation where a person who is in a work-based relationship with an organisation discloses information in relation to wrongdoing that the person has acquired in the context of current or past work-related activity. This is sometimes referred to as “whistleblowing”. Such a person is referred to as a “worker” or “reporting person” and disclosing information in relation to alleged wrongdoing in accordance with the Act is referred to as “making a report” or “making a disclosure”. The Act provides specific remedies for reporting persons who are penalised for making a protected disclosure. “Penalisation” includes dismissal and any act or omission causing detriment to a reporting person. Penalisation can be caused not only by the reporting person’s employer but also the reporting person’s co- workers or otherwise in a work-related context. The Act provides significant forms of redress for penalisation and other loss.
What do employers need to do?
The WRC has already advised that it is expecting an increase in Protected Disclosures Act claims this year therefore it is vital that employers ensure they are compliant with the amended Act and are in a position to deal with whistleblowing reports under the new regime.
Private sector employers with 250 or more employees will be required to establish formal reporting channels for workers to report concerns about wrongdoing in the workplace. In addition, all public bodies will be required to overhaul their protected disclosures procedures to comply with the Act by the commencement date. Employers with between 50 and 249 employees will not be required to establish reporting channels until 17 December 2023.
Even though companies with less than 50 employees are exempt from the requirements set out in the Act, it would be good practice for such employers to implement similar mechanisms to deal with the reporting of any wrongdoings in the workplace. A well communicated whistleblowing policy, and internal reporting procedures will ensure employees feel comfortable in reporting any wrongdoings. By having such procedures in place, companies have an opportunity to identify and manage risk at an early stage, helping to avoid or limit financial and reputational damage.
For further information on applications of the act, penalisation, reporting, offences under the act and more download our Protected Disclosures document HERE which contains further information surrounding the Act.
New Year, New Sick Pay Rules!
It's a new year and with that brings the enactment of the new Sick Pay Scheme. Ireland is one of few advanced economies in Europe without a mandatory sick leave entitlement and this new scheme now brings Ireland in line with other European countries that have mandatory paid sick leave for workers in place. Under the legislation, employers are now obliged to provide a minimum number of paid sick days annually from 2023.
Statutory sick pay provides for the entitlement of an employee to be paid a statutory sick leave payment by his or her employer in respect of a temporary absence from work due to illness, subject to medical certification from a registered medical practitioner. In the past, employees had no legal right to be paid while on sick leave from work, however since the 1st of January 2023 sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily maximum threshold of €110.
To avail of statutory sick pay an employee must obtain a medical certificate and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks. In all EU countries, medical certification of some form is a requirement to receive sick pay. However, there is some variation around the timing and frequency of when medical certification is needed.
Once an employees entitlement to sick pay from their employer comes to an end, if employees need to take more time off then they may qualify for illness benefit from the Department of Social Protection (DSP) subject to PRSI contributions. The scheme covers all workers and no waiting days are to apply (waiting days are the unpaid days in the event of illness).
What is the new Statutory Sick Pay scheme (SSP)?
The entitlement to paid sick leave is being phased in over 4 years:
2023 - 3 days covered
2024 - 5 days covered
2025 - 7 days covered
2026 - 10 days covered
Sick days can be taken as consecutive days or non-consecutive days. The sick pay year is the calendar year and therefore runs from 1 January to 31 December.
The first day in a year that an employee is incapable of working due to illness or injury shall be the employee’s first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly.
Employers can have a more generous sick pay scheme in place however they cannot give an employee less than the statutory amount. In determining whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters are to be taken into consideration:
a) the period of service of an employee that is required before sick leave is payable;
b) the number of days that an employee is absent before sick leave is payable;
c) the period for which sick leave is payable;
d) the amount of sick leave that is payable;
e) the reference period of the sick leave scheme.
Section 10 of the Sick Leave Bill provides for an exemption from the obligation for employers to pay the statutory sick leave payment where the employer is deemed unable to pay sick leave by the Labour Court. The exemption is for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.
Sick Pay Records
Records must be retained by the employer concerned for a period of 4 years and must include:
a) the period of employment of each employee who availed of statutory sick leave,
b) the dates and times of statutory sick leave in respect of each employee who availed of such
leave, and
c) the rate of statutory sick leave payment in relation to each employee who availed of
statutory sick leave.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation. For further information please see the Sick leave Bill 2022.
