Employment (Miscellaneous Provisions) Act 2018
The Employment (Miscellaneous Provisions) Act 2018 (the “Act”), which will come into force on 1 March 2019, is designed to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours.
Amendments to Terms of Employment (Information) Act 1994 (Statement of employment)
At present, the Terms of Employment (Information) Act 1994 (as amended) (the “1994 Act”) requires employers to provide employees with a written statement of employment containing fifteen core terms of employment no later than two months after the commencement of employment.
Employers are now obliged to provide employees with a written statement containing five core terms within five days of the commencement of employment. The core terms are as follows:
- Name(s) of the employer and the employee.
- Address of the employer.
- Expected duration of temporary employment or the end date of a fixed term contract.
- Method of calculating pay and pay reference period for the purposes of the National Minimum Wage Act 2000; and
- Number of hours which the employer reasonably expects the employee to work.
In order for an employee to make a complaint to the Workplace Relations Commission (“WRC”), he or she must have at least one months’ continuous service.
Failure to provide the above core terms (without reasonable cause) or to provide false or misleading information is a criminal offence punishable by a Class A fine and/or a term of imprisonment not exceeding 12 months. The WRC may issue proceedings for such an offence in the District Court.
Zero-hour contracts are prohibited under the Act save in certain circumstances. These certain circumstances include situations of genuine casual employment and where they are essential to provide cover in emergency situations to cover short-term absence. If under a contract of employment, an employee is required to be available for a certain number of hours per week or on an “as and when required basis”, the number of hours must be greater than zero.
The provision of minimum payments
The Act does does not change the current compensation mechanism under Section 18 of the Organisation of Working Time Act 1997 i.e. if the employee has not worked 25% of the hours under his or her contract of employment in a given week or if the employee is working on an “as and when required basis” and he or she has worked less than 25% of the hours that he or she was required to make himself or herself available, he or she will be entitled to the lesser of 25% of the contract or a total of 15 hours’ work.
The Act introduces a minimum payment of three times the national minimum hourly rate of pay or three times the minimum hourly rate of remuneration established by an employment regulation order.
This protection does not apply in the following individuals:
- ‘On-call’ workers, who are required to make themselves available to deal with emergencies or other events that may or may not occur; and
- Employees who are required to make themselves available in a given week by virtue only of the fact that the employer has engaged the employee to do work of a casual nature on occasions prior to the relevant week.
Amendment to the Organisation of Working Time Act 1997 (Banded hours)
Where the number of hours in the employee’s contract of employment does not reflect the number of hours actually worked by the employee, that employee can request to be placed in a band of hours which reflects the actual hours worked by an employee over a reference period of 12 months between the date of commencement of employment and the date the employee requests to be put in a band of hours.
The employee must make a written request to be placed in a band of hours. The employer must place the employee in the appropriate band no later than four weeks from the date of receipt of the request. The band in which the employee is placed in is determined by the employer on the basis of the average number of hours worked by the employee per week during the reference period. The employer can refuse the employee’s request on the following grounds:
- There is no evidence to support the employee’s claims.
- There have been significant adverse changes to the business during or after the reference period.
- It would not be practicable for the employer to comply with the request due to exceptional circumstances or an emergency.
- The average hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.
If the employer refuses to place the employee in the band (other than for the reasons above), the employee can take a claim to the WRC which can order that the employee is placed on the appropriate band.
The Act sets out the following bands:
|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 and over||–|
National Minimum Wage
The Act amends the National Minimum Wage Act 2000 in respect of employees who are under the age of twenty and repeals the section in relation to trainee rates. The Minister will prescribe a percentage of the national minimum hourly rate of pay for employees who have not reached eighteen years of age, who are eighteen years of age and who are nineteen years of age. These employees will be paid in a pay reference period at an hourly rate that is, on average, no less than the percentage of the national minimum hourly rate of pay prescribed by the Minister.
The Act states that an employer must not penalise or threaten to penalise an employee for invoking any right conferred on him under the 1994 Act, having in good faith opposed by lawful means an act that is unlawful under the 1994 Act, giving evidence in any proceedings under the 1994 Act or giving notice of his or her intention to take any of the aforementioned steps. However, the Act states that this provision does not apply to the making of a complaint that is a protected disclosure within the meaning Protected Disclosures Act 2014.
Under the Act, penalisation is defined as any act or omission by the employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, including the following:
- Suspension, lay-off or dismissal, or the threat of suspension, lay-off or dismissal.
- Demotion or loss of opportunity for promotion.
- Transfer of duties, change of location of place of work, reduction in wages or change in working hours.
- imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and
- coercion or intimidation.
Where an employee is penalised by way of dismissal, he or she must elect between bringing proceedings under the 1994 Act or the Unfair Dismissals Act 1977 to 2015. If an employer is found guilty of penalisation, the employee may be awarded an amount equivalent to four weeks’ remuneration.
For more information, please get in touch with your usual Whitney Moore contact, Marie Claire Scullion, Alice Heron or any member of our Employment, Pensions and Immigration team.