The Directive had a transposition deadline of 1 August 2022, which Ireland did not meet. According to a Minister of State at the Department of Enterprise, Trade and Employment, the reason for not meeting the deadline is that there are a number of legally complex elements being introduced by the Directive, which has prolonged the drafting process.

Many provisions of the Directive were already introduced in Ireland through the Employment (Miscellaneous Provisions) Act 2018. The Government aims to transpose the remaining provisions to into Irish legislation “at the earliest opportunity possible this year”.

What can we expect from the Directive?

The Directive introduces mandatory obligations in relation to terms of employment, provision of information to employees posted overseas, probationary periods, parallel employment, minimum predictability of work, and work-related training.

Provision of terms of employment

The Directive prescribes certain information to be provided to employees within (a) one week and (b) one month. In Ireland we already have legislation mandating terms of employment to be provided to the employee (a) within 5 days, as set out in the Employment (Miscellaneous) Provisions Act 2018 and (b) within 2 months, as set out in the Terms of Employment Information Act 1994. The following table outlines the different terms that must be provided to employees according to their respective deadline:

Existing Obligation Section 7 of the 2018 Act	New Obligation Directive – Articles 4 & 5	Existing Obligations Section 3 of the 1994 Act	New Obligation Directive – Articles 4 & 5
Within 5 days of start date:  Names of the employer and the employee Address of the employer Duration of the contract The rate or method of calculation of pay and the pay reference period for the purposes of the National Minimum Wage Act Working hours per normal working day and per normal working week	Within 7 days of start:   Names of the employer and the employee Place of work, or where there is no main place of work, statement indicating that an employee is required or permitted to work in various places Duration of contract Pay frequency and calculations details For predictable working patterns:  Length of standard working day/week Overtime and shift             changes For unpredictable working patterns: Number of guaranteed paid hours per week Pay for hours worked in excess of the guaranteed hours Hours/days within which the worker may be required to work Minimum amount of advance notice provided to employees about working hours Start date Details and duration of probationary periods Title, grade, nature or category of the work or a brief description of the work	Within 2 months of the start date: If no place of work, that the employee can work at various places Terms related to paid leave on sickness absence Notice periods Any collective Agreements Terms relating to pensions Start date Title of the job or nature of the work Frequency of pay That the employee can request a written statement of average hourly pay	Within 1 month of start date: Training entitlements (number of training days and training policy) Paid leave entitlements Procedures to be observed on termination Applicable collective agreements Identification of social security institutions receiving contributions and protection relating to that social security For agency workers – the identity of the end – user entity

Provision of information to employees posted overseas

The Terms of Employment Information Act 1994 already requires employers to provide certain information to employees who work outside of Ireland for more than one month. The Directive expands this obligation by requiring employers to provide information regarding local law remuneration entitlements, applicable allowances, arrangements for expensing travel, food and accommodation, as well as providing a link to an official national website, which sets out the terms and conditions which apply to workers posted to the host country.

Probationary periods

A key provision in the Directive is a limitation on probationary periods of six months. Each member state has the option to allow for a longer probationary period, on an exceptional basis, where it can be justified by the nature of the employment or where it is the interests of the worker. There is also the option to allow for an extension to a probationary period if the employee has been absent due to illness or leave (for a period corresponding to the absence).

For fixed-term contracts, probationary periods should be proportionate to the length of the contract and the nature of the work. Probationary periods will be prohibited in the event of a fixed-term contract renewal.

Parallel employment

The Directive contains a ban on exclusive service contracts of employments, meaning that employers may not prohibit a worker from taking up employment with other employers outside their work schedule, nor subject the employee to adverse treatment for doing so. Exclusivity provisions are permitted on certain objective grounds such as health and safety, the protection of business confidentiality, the integrity of the public service, or the avoidance of conflicts of interest.

Minimum predictability of work

There is already an effective ban in Ireland on zero hours contracts and the Directive extends employees’ rights further. The Directive provides that employees with unpredictable hours:

• cannot be required to work unless they have been given (a) information about the hours and days they may be required to work, and (b) sufficient notice of the work assignment;
• must be compensated if the employer cancels work without reasonable notice; and
• can request more predictable and secure working conditions and are entitled to receive a reasoned written reply within one month of the request (provided they have six months’ service and have completed their probationary period).

For any subsequent similar requests by the employee, member states can extend the response deadline to three months and allow for an oral reply where the justification for the reply remains unchanged.

What constitutes “sufficient/reasonable notice” will be established in accordance with national law, collective agreements or practice.

Work-related training

If an employer is required by EU or national law or collective agreements to provide training to employees to carry out the work for which they are employed, this training must be provided free of charge, during working hours where possible and is counted as working time. This excludes training required for employees to obtain, maintain or renew a professional qualification unless the employer is required by law or collective agreement to provide that training.

The exact provisions of the legislation remain to be seen and we will provide a further update in due course.

With thanks to Aedín McHugh for her contribution to this article.