Key Contact: Patrick Walshe – Partner

As published on Legal Island, 2 February 2023.


The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (“the Regulations”) became law in Ireland on 16 December 2022.

The Regulations make a number of highly significant changes in relation to:-

  • Probation;
  • Parallel employment;
  • Mandatory statements of terms and conditions that have to be provided to staff;
  • Employees working abroad;
  • Requests to transition to different forms of employment; and

Of these, the changes in relation to probation and parallel employment are probably the most significant.

The Regulations apply to all employees in Ireland.


Section A – Probationary Periods

How long can probationary periods be now?

The law has been significantly changed here. Specifically:-

  • The probationary period of a public servant may not exceed 12 months; and
  • The probationary period of all other employees may not exceed 6 months.

Is this an absolute rule?

No. An employer may extend the probationary period:-

  • on an “exceptional basis”;
  • if it “would be in the interest of the employee.”

However, either way, a probationary period cannot exceed twelve months.

The precise limits of “the interest of the employee” will only be determined once cases are taken. However, it is possible that this provision is designed to prompt employers to extend probationary periods in circumstances where they wish to give the employee a further chance to make the grade (as opposed to dismissing during an initial probationary period).

That said, the use of “on an exceptional basis” arguably mitigates against employers regularly extending and is perhaps contradictory.

What about employees who are on probation now?

The Regulations became law in Ireland on 16 December 2022. If an employee has been subject to a probationary period of over six months on the commencement date of the Regulations (16 December 2022), and the employee has already completed at least six months of this probationary period, the probationary period will expire on the earliest of:-

  • The date that the probationary period was due to expire; or
  • 1 February 2023

This is an especially important provision for employers who currently have employees on probation.

What happens if employees take Special Leave (Maternity, Paternity, Adoptive leave etc)?

The Regulations provide that if an employee takes Special Leave during a probationary period, the period shall be extended by the employer for the duration of the employee’s absence.

Do the Regulations apply to probationary periods for fixed-term employees?

Yes. The Regulations amend the Protection of Employees (Fixed-Term Work) Act 2003 in two important ways:-

  • If a fixed-term employee is subject to a probationary period, the length of this period must be “proportionate” to the expected duration of the fixed-term contract and the nature of the work.
  • If an employer and employee agree to renew a fixed-term contract for the same functions and tasks, this renewed contract may not be subject to a probationary period.


Section B – Statements of Terms and Conditions of Employment

What does this relate to generally?

Employers were already required to provide certain information in writing to employees very early in the employment relationship. Specifically:-

  • Certain information must be provided within five days of the employee starting work; and
  • Additional information had to be provided within 2 months of the employee starting work.

The intention was that key information is provided quickly (ie, within 5 days) with further information to follow.

Have these periods been changed?

The five-day period is the same. The two-month period has now been shortened to one month.

What must an employer provide in writing to a new employee within five days of the start date?

Employers have been required to provide a statement to employees within five days since the introduction of the Employment (Miscellaneous Provisions) Act 2018. However, the type of information to be provided has now changed.

From now on, the following information must be provided within 5 days:-

  • Full names of the employer and employee;
  • Address of the employer;
  • The expected duration of the contract (where the contract is either a temporary or fixed-term contract);
  • Rate or method of calculating pay;
  • The ‘pay reference period’ (be it weekly, fortnightly or monthly);
  • The number of hours that the employer reasonably expects the employee to work.
  • (New) Confirmation of place(s) of work, or if applicable, conformation that an employee is free to determine their own place of work.
  • (New) The title, grade, nature or category of work, or a brief specification or description of work.
  • (New) Date of commencement of employment contract.
  • (New) Any terms and conditions relating to hours of work and overtime.
  • (New) Duration and conditions of a probationary period (if applicable).

What must an employer provide in writing to a new employee within one month of the start date?

Employers were already under an obligation to provide certain information in writing within two months – as referred to above, this period has now been shortened to 1 month.

The type of information that had to be provided has also changed.  From now on, the following information must be provided within 1 month:-

  • Applicable pay intervals (whether they are weekly, monthly or any other interval);
  • Terms or conditions relating to paid leave (which would include annual leave and public holiday entitlements);
  • Terms or conditions relating to sick pay entitlements;
  • Terms or conditions relating to pension and pension schemes;
  • The notice period which the employee is required to give and entitled to receive;
  • Details of any applicable collective agreements;
  • (New) The training entitlement, if any, provided by the employer;
  • (New) For temporary agency workers, the identity of the end-user;
  • (New) Where the working schedule of the employee is unpredictable:-
  • Acknowledgement that the work schedule is variable;
  • The number of guaranteed paid hours;
  • Pay for work performed in addition to guaranteed hours;
  • The reference hours and days within which the employee may be required to work; and
  • The minimum notice period before the start of a work assignment and, where applicable, the notification deadline.#
  • (New) Details of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

Is there a specific form that statements must take?

Yes. The statements must be:

  • Signed and dated by the employer.
  • In writing.
  • Accessible to the employee, whether issued on paper or electronically.
  • Retained and stored by the employer as proof of either the transmission or receipt of the electronic form.

What obligations are on an employer if the terms of an employee’s contract are changed?

Under previous legislation, employers already had an obligation to notify employees if changes were made to the particulars of any statement furnished to employees.

Specifically, employers were obliged to notify within 1 month.  This has now been changed and the notification must take place on the day on which the change takes effect.


Section C – Parallel Employment

What is involved here?

These provisions are novel and restrict the ability of an employer to prevent an employee from working for another employer concurrently.

What is the main effect of the change?

There are two core changes:-

  • An employer cannot generally prohibit an employee from taking up employment with another employer outside of the work schedule established with the first employer.
  • An employer cannot subject an employee to “adverse treatment” for taking up employment with another employer outside of scheduled working hours.

Are there any exceptions to the core changes?

Yes. The Regulations provide that an employer may restrict an employee from taking up employment with another employer in these circumstances where the restriction is:-

  • Proportionate; and
  • Based on objective grounds.

The Regulations refer to this as an ‘incompatibility restriction.’

How is this going to work in practice?

We will need to see WRC/court cases in practice to get a better understanding of how rigid these principles will be, but the Regulations oblige an employer to provide the following information when they are imposing an “incompatibility restriction”:-

  • details of the “incompatibility restriction”, including details of the objective grounds on which the incompatibility restriction is based.

Where does this have to be provided?

This can either be provided either in the contract of employment or in a standalone statement.

What objective grounds are going to pass the test?

As referred to, this remains to be seen although the Regulations set out a non-exhaustive list of possible objective grounds:-

  • health and safety
  • the protection of business confidentiality
  • the integrity of the public service
  • the avoidance of conflicts of interests
  • safeguarding productive and safe working conditions
  • the protection of safety of patients and people receiving care from the health service
  • the protection of national security
  • the protection of critical national infrastructure
  • the protection of energy security
  • the administration of vital public service functions
  • compliance by the employer and the employee with any applicable statutory or regulatory obligations
  • compliance by the employee with any professional standards for the time being in force

Are there special rules for public bodies?

Yes.  The Health Service Executive is mentioned specifically and objective grounds, in its case, includes the protection of health and safety and the state’s objectives of promoting public welfare by improving public health, removal of inefficiencies and assisting in the implementation of a universal healthcare service.


Section D – Employment outside of Ireland

What information must be provided to employees that are posted to work outside of Ireland?

Employers were already under obligations to provide certain information to employees in these circumstances. Specifically, under previous legislation, employers were obliged to provide certain information to employees who were required to work outside the State for a period of not less than 1 month. That information has been added to and now comprises:-

  • Currency in which the employee will be paid;
  • Any benefits in kind;
  • The terms and conditions governing the employee’s repatriation; and
  • (New) the country, or countries, in which the work is to be performed and the anticipated period of employment.

In addition, where an employee is a posted worker (within the meaning of the European Union (Posting of Workers) Regulations 2016), the following additional information must be specified in writing.

  • The remuneration to which the employee is entitled in accordance with the applicable law of the host member state of the EU;
  • Any allowances specific to posting and any arrangements for reimbursing expenditure on travel, board and lodging; and
  • A link to the single official national website developed by the host member state relating to the posting of workers.


Section E – Requests to transition to another form of employment

What is this, broadly?

This is another novel section designed to assist employees whose working conditions are unpredictable.

Specifically, an employee can request “a form of employment with more predictable and secure working conditions where available”.

Is there a service threshold?

Yes – the employee must be in the continuous service of their employer for not less than 6 months and have completed a probationary period (if one was imposed).

What obligations are on an employer if an employee requests to transition to another form of employment?

An employer must provide such an employee with a reasoned written reply within one month of receipt of any such request.

An employer may provide an oral reply where a subsequent similar request was previously submitted by the same worker where the situation of the worker remains unchanged.


Section F – Mandatory training

What is involved here?

This is another (simple) novel section. If work related training is required by law or by a collective agreement, an employer must ensure that such training is:

  • Provided to the employee free of charge;
  • Counted as working hours; and
  • During working hours if possible.


Section G – Collective Agreements

Does a collective agreement affect any of the matters referred to in the Regulations?

Yes. If the employment in question is governed by a collective agreement approved of by the Labour Court or a registered employment agreement, the regulations on probationary periods, the right to seek parallel employment, the right to request transfer to another form of employment and work-related training will not apply.


Section H – Refusal to work expected working hours

What does this involve generally?

This is a change designed to strengthen an employee’s hand where they have unpredictable working hours.

What does this involve specifically?

Under existing law, employers were required to notify employees at least 24 hours in advance of their working hours (subject to any unforeseen circumstances).

This has now changed so any work assignment notified to an employee has to take place within the reference hours and days already notified to employees in their written terms.

If this doesn’t happen, the employee is entitled to refuse to work the assignment without any “adverse consequences”.


The Regulations transpose EU Directive 2019/1152 on Transparent and Predictable Working Conditions in the European Union.

In addition to creating new employee rights, the Regulations significantly amend employers’ obligations under the Terms of Employment (Information) Act 1994 (which had already been significantly changed under the provisions of the Employment (Miscellaneous Provisions) Act 2018. Changes have also been made to a lesser extent to (a) The Organisation of Working Time Act 1997 and (b) the Protection of Employees (Fixed-Term Work) Act 2003.

There are limited exceptions, such as employees with less than four consecutive weeks’ service or an average of three working hours or less per week.