The Employment (Miscellaneous Provisions) Act 2018 (“the Act”) will come into effect, in early March 2019. It is a significant piece of legislation, which not only strengthens the rights of workers but has important repercussions for employers if there is a failure to comply with the provisions therein.
The key features for employers to be aware of are:
Employers are required to provide new employees, within five days of their commencing work, with a statement in writing setting out five core terms:
Failure to comply with the provision may result in not only a fine of up to €5,000.00 but may also result in imprisonment of a term not exceeding 12 months.
The Act introduces a prohibition on contracts specifying zero as the contract hours, except in limited circumstances. In instances where the work is of a casual nature, where the work is done in emergency circumstances or short term relief work to cover routine absences for the employer.
The Act further provides that should an employer fail to provide work amounting to 25% of the normal hours worked by an employee, than an employee is entitled to be paid 25% of those normal contract hours.
Zero hour contracts are distinguished from what are sometimes colloquially referred to as ‘if and when’ arrangements, where there is only an expectation on the part of the employee rather than an obligation to work. In such instances there is no mutuality of obligation on the part of the employee, and therefore, no entitlement to payment as referred to above.
These provisions however, do not apply to employees who are required to make themselves available on an ‘on call basis’ such as genuine emergency workers.
One of the significant changes with the Act is the introduction of Banded Hours, which provide employees with the right to be placed on a specific classification of banded hours, where they can show that they have worked a particular number of hours per week calculated over a 12 month reference period.
Band From To
| A | 3 Hours | 6 Hours |
| B | 6 Hours | 11 Hours |
| C | 11 Hours | 16 Hours |
| D | 16 Hours | 21 Hours |
| E | 21 Hours | 26 Hours |
| F | 26 Hours | 31 Hours |
| G | 31 Hours | 36 Hours |
| H | 36 Hours + |
BAND OF HOURS
An employee must make a request in writing to be placed on a specific band and the employer has 4 weeks in which to comply or refuse the request. However, an employer may refuse the request in instances where:
– There is no evidence to support the employees claim;
– There has been significant adverse changes to the business or profession during or after the reference period mentioned above;
– The additional hours worked during that period related to a temporary situation which no longer exists.
· Anti-Penalisation Provisions
The 2018 Act also introduces strong anti-penalisation provisions for employees who invoke their rights under the legislation.
Conclusion
In preparation for the Act coming into force employers should undertake a review of all employee contracts and:
– Ensure any contract relating to zero hours are discontinued, provided the exceptions to the prohibition do not apply;
– Ensure that the hours actually worked by employees are reflected in their contracts;
– Ensure the core terms of employment are provided to new employees within five days of commencement and there is systems in place to comply with this provision.
Link: http://www.irishstatutebook.ie/eli/2018/act/38/enacted/en/html
28th February 2019
Anne O’Connell Solicitors
Fitzwilliam Hall, Fitzwilliam Place, Dublin 2
If you found this article useful you might like our employment law newsletter. We write monthly articles, like this, covering interesting cases, decisions, news and developments in Ireland.