The Employment (Miscellaneous Provisions) Act 2018 (the “Act”) came into operation today on 4 March 2019 having been the subject of considerable debate as it progressed through the Oireachtas. The Department of Employment Affairs and Social Protection has been running an information campaign to inform employers and employees of their rights and obligations under the Act in preparation for its commencement.
The Act requires employers to provide employees with a written statement of basic terms and conditions of employment within five days of starting employment and provides employees with a right to minimum payment where an employee is obliged to be available for work but is not asked to come in to work. In addition, the Act prohibits the use of zero-hour contracts, save in limited circumstances, and introduces banded working hours on a statutory basis. Considerable anti-penalisation provisions have also been introduced to protect an employee asserting their rights under the Act.
i. Written Statement of Core Terms
The Act requires an employer to provide the following core terms to an employee in a written statement within five days from his/her start date:
- full names of the employer and employee;
- address of the employer;
- where the contract is temporary, the duration of the contract or if it is for a fixed term, the date on which the contract expires;
- the rate or method of calculation of the employee’s remuneration and pay reference period; and
- the number of hours per day and per week which the employer reasonably expects the employee to work.
This requirement is in addition to the obligation to provide an employee with a written statement of terms of employment within two months of his/her start date.
An employee may bring a complaint to the Workplace Relations Commission (“WRC”) where his/her employer breaches these obligations. However, an employee must have one month’s continuous service before he/she may bring any such complaint.
Employees may be awarded up to four weeks’ remuneration where a complaint is upheld.
Criminal offences have also been introduced where employers:
- fail without reasonable cause to provide an employee with his/her statement of core terms within one month of his/her start date; or
- deliberately or recklessly provide an employee with a false/misleading statement of core terms.
Employers may be liable to a fine of €5,000 or imprisonment for a term of up 12 months or both. Personal liability is also provided for company officers in certain circumstances.
ii. Zero-Hour Contracts
Zero-hour contracts require employees to be available for a certain number of hours. However, an employer is not required to provide them with any work.
The Act prohibits the use of zero-hour contracts, save where:
- the work involved is casual in nature;
- they are essential for providing cover in emergency situations; or
- they are necessary to cover short-term absences.
iii. Minimum Payment
Where an employee is required to be available for work but he/she is not provided with work, the employee is entitled to a payment for the lesser of 25% of his/her contracted hours or 15 hours’ work. In either case, the minimum payment which an employee receives must be three times the national minimum wage which is currently €9.80.
An employee shall not be entitled to a payment where the reason for reduced hours arises from:
- the employee being laid-off or on short-time;
- exceptional or emergency circumstances outside the employer’s control; or
- the employee being unavailable to work due to illness or some other reason.
iv. Banded Hours
Employees are entitled under the Act to make a written request to their employer to be placed on a particular band of weekly working hours (a “Band”) where they work more hours than appear in their employment contract. An employer must consider a 12-month period immediately preceding the date of request to determine if an employee should be placed on a Band.
Employers may only refuse to place an employee on a Band where:
- there is no evidence to support the request;
- there have been significant adverse changes to the business, profession or occupation during or after the reference period;
- the average hours calculated during the reference period were affected by a temporary situation which no longer exists; or
- the employer is unable to comply due to exceptional circumstances or an emergency, the consequences of which the employer could not avoid, or the occurrence of unusual or unforeseeable circumstances outside the employer’s control.
Once an employee is placed on a Band, his/her employer must for the following 12 months provide that employee with working hours which on average fall within that Band.
Where an employee believes his/her employer has failed to place him/her on a Band within four weeks from the date of request, or has unreasonably refused to place the employee on a Band, he/she may bring a complaint to the WRC.
While an Adjudication Officer of the WRC (“AO”) may require the employer to place the employee in the relevant band of working hours where he/she believes that a complaint is well founded, the AO cannot award the employee compensation.
Contributed by: Richard Smith.