Changes to Contracts of Employment, Probation Periods and Exclusivity Clauses - Are You Aware of These?
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into effect on 16 December 2022. This legislation provides for some significant changes to employment contracts that employers must be aware of. Take time to read through the changes and then review your contracts of employment and processes to ensure they are compliant.
1. Changes to the 5-Day Statement which is the statement outlining core terms of employment no later than 5 (calendar) days from when an employee commences employment. Within this statement an employer must now additionally include reference to:
- Details pertaining to a probation period, where one applies (see further information below);
- The place of work or any associated information;
- Information on the title, grade, nature or category of work, or a brief description of the work;
- The date the contract commences; and
- Any terms and conditions relating to hours of work, including overtime.
2. The full contract of employment must now be provided to employees within one-month of when the employee commences employment (previously this was two-months).
- The training, if any, provided by the employer;
- In the case of a temporary agency workers, the identity of the end-user, when and as soon as known;
- Where the working pattern is completely, or mostly, unpredictable, reference to the work schedule being variable, along with the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours. It should also state the hours and days where the employee may be required to work, and the minimum notice period to which the employee is entitled to before the start of a work assignment; and
- The identity of the social security institutions receiving the social insurance contributions, where the employer choses that institution attached to the contract of employment and any protection relating to social security provided by the employer.
3. Where a change of terms occurs to the contract employers are now required to notify the employee in writing of the change, including the date from which is will apply, no later than the day that the change takes effect.
4. Probationary periods cannot exceed 6 months unless there is an exceptional basis for doing so and it would be in the interest of the employee. Nonetheless, it cannot be longer than 12 months.
It should be noted that for those employers who would have had longer probation periods previously they must be cautious and ensure they are compliant with the 1 February 2023 deadline. This deadline is key where the employee has already completed 6 months of their probation, as in this situation the probation will expire on this date or the date on which the probationary period was due to expire, if earlier.
For those with fixed term contracts the length of any probationary period must be proportionate to the expected duration of the contract. Additionally, if the contact is extended, for the same role, then no probation period can be inserted into the renewed contract.
5. Additional Employment can no longer be prohibited outside of an employee’s working schedule. Restrictions can apply where it is proportionate and based on objective grounds such as health and safety, business confidentiality and conflict of interest (there is a longer list). In such a situation the incompatibility restriction must be detailed within the contract of employment along with the objective justification.
6. Once an employee has been in employment for not less than 6 months and has completed their probation period they have the right to request a transfer to work of a more predictable and secure nature. Only one such request can be submitted in any 12 month period and in reply the employer must provide a reasoned written reply to the employee within one month of the request.
7. Employees must be paid for time spent on mandatory work related training, and where possible will take place within the employee’s working hours.
8. There is a provision with the Organisation of Working Time legislation that an employer must notify employees at least 24 hours in advance of their working time or days. Where an employer fails to notify in accordance with this provision or work is assigned outside of the reference hours and days as detailed in the contract of employment, the employee is entitled to refuse the work assignment without penalisation.