Stratis Employment Policy Update – March 2023
Amidst a busy time of legislative and other proposed employment policy changes, the following is a short overview of some of the main employment policy changes recently introduced, or under consideration, which employers should be aware off in 2023.
1. Transparent and Predictable Working Conditions Regulations 2022
On 16 December 2022, the Government signed the EU (Transparent and Predictable Working Conditions) Regulations 2022. The Regulations transpose the EU Directive on transparent and predictable working conditions into Irish law. The Regulations amend obligations under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, the Workplace Relations Act 2015, and the Protection of Employees (Fixed Term Work) Act 2003.
The Regulations apply to all employees except those that have been employed for less than four consecutive weeks or employees who work an average of three hours or less per week.
A contract of employment is now defined under the Terms of Employment (Information) Acts 1994 to 2014 (Act) to include "…any other contract whereby an individual agrees with another person personally to execute any work or service for that person…". This expanded definition could bring workers, previously considered to be self-employed, within the scope of the Act.
The following are the key changes introduced which employers should be aware of:
1. Employers must now provide an expanded list of terms to employees within five working days of their commencement date (i.e., 5-Day Terms). These include:
the date of commencement of the contract.
information about remuneration.
information about the place of work.
information about the nature or description of the work.
any terms or conditions relating to hours of work (including overtime); and
if there is a probationary period, its duration, and conditions.
2. Other than the above 5-day terms, employees must receive their full written contract of employment within one month (this replaces the previous two-month period) from commencement of employment. The contract of employment must now include information on:
any training entitlements,
paid leave entitlements,
procedures to be observed on termination,
any applicable collective agreements, and
in the case of agency workers, the identity of the end user.
3. Employees who work unpredictable work patterns must now be informed that their work schedule is variable, and the contract must set out the number of guaranteed paid hours and the remuneration for hours worked in addition to the guaranteed hours, the hours and days the employees may be required to work and the minimum notice period the employee is entitled to before the start of a work assignment.
These employees now have a right to request a form of employment with more secure working conditions after they have successfully completed six months of service. The employer must provide the employee with a reasoned reply to the request within one month.
4. Employers must provide employees with a notice of changes to terms and conditions of employment on the day the change(s) take effect. Previously, an employer could provide such a notice up to one month after the changes took effect.
5. For employees posted overseas they must receive information regarding remuneration in accordance with local legal entitlements, arrangements for expenses and a link to an official EU website which sets out the terms and conditions that apply to workers posted abroad.
6. Probationary periods in contracts of employment are limited to 6 months and can only be extended in exceptional circumstances such as where an employee was on extended sick leave during the probationary period. Employees who are subject to a probationary period of more than six months in December 2022, and who have already completed six months, shall have their probationary periods automatically expire on 1 February 2023, if not before.
7. Employees are permitted to take up "parallel employment". Employers through exclusive service clauses cannot prohibit an employee working for another employer outside their work schedule, subject to restrictions. Any such restriction must be proportionate and include the objective grounds upon which the restriction is being imposed. It must be detailed in the employee's employment contract or in a statement sent to the employee.
8. Employees will also have the right to receive mandatory paid training during working hours.
2. Work Life Balance and Miscellaneous Provisions Bill 2022
Having decided to merge both pieces of proposed legislation, incorporating provisions on the right to request remote working, the Government has introduced a range of amendments to the legislation in December 2022.
The Bill provisions on the right to request remote working provide that:
Remote working cannot start until the employee has six months’ continuous service.
An employer will have four weeks (extendable to up to eight weeks) to consider and either approve or deny a request.
The previous proposed 13 grounds for refusing a request to work remotely have been replaced to create an obligation for employers to consider both parties’ needs and the provisions of an anticipated Code of Practice (to be drafted by the Workplace Relations Commission) when responding to a request, and to provide grounds for refusal.
While remote working arrangements can be requested by any employee (provided the request is made in accordance with the Bill), flexible working arrangements (defined as an arrangement where an employee's working hours or patterns are adjusted, including through the use of remote working, flexible working schedules or reduced working hours), may only be requested by those employees with children up to the age of 12 and those with caring responsibilities. (The Government has stated it will review these two years after the legislation has passed).
Other measures allow that:
Employers will no longer be able to postpone the start date of the flexible working arrangement.
Remote or flexible working arrangements can be terminated by an employer, provided the employer follows the termination process allowed in the Bill (i.e. employers must provide reasons for termination which align to those in the Bill, give employees an opportunity to respond, and consider that response before making a decision).
The grounds for bringing WRC claims in relation to requests for flexible working and remote working will include claims arising from the termination of such arrangements. However, the Bill states that, for claims concerning both flexible and remote working arrangements, the WRC cannot consider the “merits” of the decisions by the employer, including the reasons for reaching their decision.
Finally, new provisions are included providing for paid domestic violence leave of up to five days' paid leave in any 12-month period with pay to be in line with the rate of pay for statutory sick pay.
The Bill introduces five additional days unpaid leave per year, to provide care and support to a child, parent, spouse, civil partner, and a person who lives in the same household who needs serious medical care.
The Bill extends the existing maternity leave entitlements to transgender men and breastfeeding break entitlements will be extended to two years post birth.
It is expected the Bill will pass into law in H1, 2023.
3. Sick Leave Act 2022
The Sick Leave Act 2022 is effective since 1 January 2023. Employees with 13 weeks' service are entitled to three days SSL (statutory sick leave) in 2023 for certified sick leave, in accordance with the Act, the entitlement is expected to rise gradually to ten days by 2026. The prescribed rate of pay is 70% of an employee's usual daily earnings up to a maximum of €110 per day.
4. Gender Pay Gap Information Act 2021 and Reporting
Last year, 2022, was the first year in which employers with 250+ employees had to report their gender pay gap. As this is now an annual requirement, in 2023 employers (with 250+ employees) will need to choose a snapshot date in June 2023 and they will need to report by the same date in December 2023. Those employers with over 150 employees will be required to comply in 2024 and those with over 50 employees in 2025.
It is expected that for 2023 there will be an online central portal where all employer reports will be uploaded and can be accessed publicly. This will allow the public to search for and view individual employers’ returns.
5. National Minimum Wage / National Living Wage Issues
The national minimum wage rates of pay increased from 1 January 2023 and for people aged 20 and over increased by 80c or 7.6% to €11.30 and is estimated to benefit 164,700 people. This will be followed by gradual increases until it reaches 60% of hourly median earnings. In 2023, it is estimated that 60% of median earnings would equate to approximately 13.10 per hour being the indicative National Living Wage for 2023 as recommended by the Low Pay Commission.
The intention is to phase in the Living Wage between now and 2026 when it will become mandatory.
6. The Protected Disclosures (Amendment) Act 2022
The Protected Disclosures (Amendment) Act 2022, effective from 01.01.23, introduced substantial changes to the Protected Disclosures Act 2014. The definition of a “relevant wrongdoing” covered by statutory protections has been broadened. With some exceptions, private sector employers with 250 or more employees (reducing to 50 employees from 17 December 2023) must establish formal channels and procedures for the making of protected disclosures. The new Act includes strict regulations in relation to the acknowledgement and follow up of protected disclosures made by workers.
7. Automatic Enrolment Retirement (AE) Savings System Bill
This Bill is on the Government legislative priority list for Spring 2023 and the Pensions Authority is urging the Government to introduce Automatic Enrolment (AE) as quickly as possible to ensure an increase in pension coverage rate.
The General Scheme of the Automatic Enrolment (AE) Retirement Savings System Bill is sponsored by Minister for Social Protection Heather Humphreys and is under consideration by the Oireachtas Committee on Social Protection for Pre-Legislative Scrutiny ahead of its expected introduction in early 2024.
This auto enrolment system has been mooted for some years but has been delayed due to consultations and design complications. The system is to be set up on a statutory footing and a Central Processing Authority will be needed to operate the system, along with a communications campaign to ensure people understand it.
Under the proposal, all employees not already in an occupational pension scheme, aged between 23 and 60, and earning over €20,000 across all of their employments, will be automatically enrolled. On commencement, some 750,000 workers will initially be enrolled into the scheme.
Assuming the system is set up for employee enrolments in 2024, AE is to be phased in over a decade, with both employer and employee contributions starting at 1.5%, and increasing every three years by 1.5% until they eventually reach 6% by Year 10 (2034). This is to allow time for both employers and employees to adjust to the new system.
If you would like to talk to us about any of the above issues, please get in touch with us or any of our Partners.
Brendan McGinty | Managing Partner
‘Strategic Employment Relations’
M: +353 (0) 87 2433038 +353 (0) 1 2936748
Disclaimer: The information in this article is for general guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.