Proposal for an EU Directive on Transparent and Predictable Working Conditions

As part of the European Pillar of Social Rights, the European Commission published a proposal in December 2017 to introduce a new directive legislating for more transparent and predictable working conditions across the EU. The broad objectives of the proposed directive are to promote more secure and predictable employment, to ensure labour market adaptability and to improve living and working conditions. Significance of proposal The Commission proposal is significant because it seeks to update and replace Directive (91/533/EEC), commonly referred to as the Written Statement Directive. The Written Statement Directive provides that employees starting a new job are entitled to a written statement of terms of employment within two months of commencement of employment. The Written Statement Directive sets down a list of information items that must be included in the statement. The Written Statement Directive was transposed into Irish law by the Terms of Employment (Information) Act 1994. Overlap with draft Irish legislation Domestic legislative efforts are already underway to update employer obligations concerning the provision of employment information to employees under the Employment (Miscellaneous Provisions) Bill 2017 (the Bill). Key differences between proposal and draft Irish legislation There are key differences between the Commission proposal and the Bill. While the Bill pre-empts many aspects of the Commission proposal, the proposal includes elements which go beyond the measures contained in the Bill. Similarly, the Bill exceeds the scope of the Commission proposal in other respects. The principal differences between the Commission’s proposal and the comparable provisions in the Bill are summarised below. The EU proposal Scope of the directive The Commission proposal has broad application and would include all workers, even those casually engaged in once-off work assignments. This could include situations where a domestic household engages a self-employed tradesperson to carry out work at their home. Information to be provided to workers The Commission proposal contains an extensive list of information to be provided in the written statement. This list includes certain items not required by the Bill, such as: -

• periods of probation,
• training to be provided by the employer, and
• social security arrangements.

Time period within which information is to be provided The Commission proposal provides that the statement containing all of the required information should be provided to the worker on the first working day and no later. Favourable presumption of written terms The Commission proposal provides that if certain information is not provided in the written statement provided on day one of employment, the employee may benefit from a number of favourable presumptions. The presumptions include the worker being deemed to be employed in a full-time, open-ended position, without any probationary period. The Employment (Miscellaneous Provisions) Bill Scope more limited The scope of the Bill is limited to employees employed on a contract of service basis and excludes genuinely self-employed individuals. Five core terms The Bill distinguishes between a shorter statement of five core terms of employment, which must be provided no later than the fifth day after commencement of employment, with the remaining items to be provided within the current 2-month period. No provision for favourable presumptions The Government Bill does not include favourable presumptions similar to those in the Commission proposal. Sanctions are provided for as a deterrent for non-compliance. The Bill provides for criminal offences by employers who deliberately provide false or misleading information to the employee as part of the Day 5 statement of core terms. The Bill further provides that it shall be a criminal offence for an employer to omit to provide the Day 5 statement within a specified period. Watching brief Given that the Government’s attempts to legislate in the area could be superseded by a subsequent EU directive it remains unclear how the Bill will progress. A further update will be provided as soon as any developments arise. To find out more about existing employer obligations to provide a written statement of terms under the Terms of Employment (Information) Act 1994 call our 24-hour advice line on 0818 923 923