Transparent And Predictable Working Conditions Regulations 2022 – Key Changes To Probationary Periods – Employee Rights/ Labour Relations

The Transparent and Predictable Working Conditions Regulations
2022 (“the Regulations”) came into effect on 16 December
2022. The Regulations transpose the EU Directive 2019/1152 on
Transparent and Predictable Working Conditions (“the
Directive”). The Regulations amend a number of pieces of
existing employment legislation, to include 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 purpose of the Directive was to provide transparency in
working arrangements and protection to those employees on less
secure contracts, for example, temporary contracts or gig economy
workers. However, the Regulations apply to all employees.

Given that the Regulations apply from 16^th December
2022, this is an opportune time for employers to understand the
changes introduced and to review existing HR practices and
documentation to ensure compliance with the Regulations.

The Employment Team at RDJ LLP is, as always, helping our
clients to navigate the changes which the Regulations have brought
about. One area of real concern for employers is that of
probationary periods and any changes that need to be considered on
foot of the Regulations.

The purpose of this Insight is to outline the legal changes to
probationary periods and what employers need to do now to make sure
they are fully compliant with the new law in this area.

Key Changes to Existing Legislation

The Regulations make a number of amendments to the Terms
of Employment (Information) Act, 1994 (“the 1994
Act”), which is the legislation that requires employers to
issue employees with written statements of their terms and
conditions of employment.

The Regulations insert new provisions into the 1994 Act dealing
with probationary periods, which can be summarised as follows;

1. The Regulations provide that probationary periods in the
private sector cannot exceed 6 months (and for public servants,
cannot exceed 12 months). However, the Regulations also provide
that probationary periods can on an exceptional
basis be longer than 6 months provided they do not
exceed 12 months and it would be in the interest of the
employee to extend.

In practice, what this means for employers is as follows;

• If a probationary period is to be extended, then the extension
  should be on an exceptional basis – in other words, it should be
  the exception, and not the norm, in your organisation to extend
  probationary periods (which is a consideration not specific to the
  individual employee), and,




• In relation to the specific employee, the extension should be
  for no longer than a further 6 months (and the RDJ Employment Team
  would advise you to never extend beyond 11 months in practice) and
  it should be in the interest of the employee to extend (presumably,
  if the alternative to extension is termination of employment, it
  will be in the employee’s interest to extend).

Some commentators are suggesting that “exceptional
circumstances” are required to extend probationary periods -
but that is not in fact what the Regulations state – they provide
for “an exceptional basis”, which is quite different as
outlined above.

2. The Regulations also amend the Protection of
Employees (Fixed Term Work) Act, 2003 and provides that,
where an employee is employed under a fixed term contract, the
length of any probationary period must be proportionate to the
expected duration of the fixed term contract and the nature of the
work. Furthermore, where an employer proposes to renew a fixed term
contract for the same functions and tasks, the further
fixed term contract shall not be subject to a new probationary
period.

In practice, what this means for employers is as follows;

• If a fixed term contract is, for example, for a fixed period of
  one year, a proportionate probationary period might be three
  months, as opposed to the usual 6 months in a permanent
  contract.




• Where an employer is renewing a fixed term contract, if it is
  for the same functions and tasks, no probationary period should be
  inserted to the renewal.

3. The Regulations provide that where, on the commencement date
of the Regulations, which was 16^th December, 2022, an
employee in the private sector is already subject to a probationary
period which exceeds 6 months and the employee has completed at
least 6 months of that probationary period, the probationary period
will expire on the earliest of two dates – the date on which the
probationary period is due to expire under the contract
or the 1^st February 2023.

In practice, what this means for employers is as follows;

• If you have an employee who commenced employment before the
  16^th December 2022 and was subject to a probationary
  period longer than 6 months, and has completed at least 6 months
  service with you, their probation will now expire on 1^st
  February 2023, if that date is earlier than the end of the
  contractual probationary period.




• You need to urgently review any employees in this category
  (which will be limited in our view) to determine if they are going
  to pass probation or not.

4. The Regulations provide that where, in accordance with a
specified provision, an employee is absent from work during
the probationary period, the period shall be extended by the
employer for the duration of the employee’s absence. The term
specified provision has then been defined under the
Regulations, to mean the following;

In practice, what this means for employers is as follows;

• Only this list of statutory leave will allow for the extension
  of probationary periods.




• Whilst the Sick Leave Act is included in this list, it is
  important to remember that the Sick Leave Act 2022 only provides
  for 3 days of statutory sick leave during 2023. Therefore, if an
  employee is absent for longer than the statutory 3 days leave, that
  longer period does not count for the purposes of extending the
  probationary period.




• Whilst an employer could state in their contracts that any
  other absence, outside of the specified list in the Regulations,
  will result in the extension of the probationary period, that is
  outside the terms of the Regulations and could result in a claim
  being made against the employer to the Workplace Relations
  Commission (“WRC”) for breach of the legislation which
  the Regulations amend, being the 1994 Act.

Remedies for Breach of the Regulations

An employee can take a claim to the WRC for breach by their
employer of the provisions outlined above. The WRC, in turn, can do
one or more of the following;

1. declare that the complaint was or, as the case may be, was not
   well founded,




2. either-
   

   1. confirm all or any of the particulars
      contained or referred to in any statement furnished by the
      employer, or

   
   

   2. alter or add to any such statement for the purpose of
      correcting any inaccuracy or omission in the statement and
      the statement as so altered or added to shall be deemed to have
      been given to the employee by the employer,




3. require the employer to give or cause to be given to
   the employee concerned a written statement containing such
   particulars as may be specified by the adjudication
   officer,




4. order the employer to pay to the employee compensation
   of such amount (if any) as the adjudication
   officer considers just and equitable having regard to all
   of the circumstances, but not exceeding 4 weeks’
   remuneration.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.