The Employment (Miscellaneous Provisions) Act 2018 – Key Changes and Next Steps for Employers

by Breda O'Malley , Niamh Cassidy January-15-2019 in Employment Law

The Employment (Miscellaneous Provisions) Act 2018 (the “Act”) has recently been hailed by the Minister for Employment Affairs and Social Protection, Regina Doherty T.D. as “one of the most significant pieces of employment legislation in a generation”.  It comes into effect in March 2019. 

The Act makes changes to two main pieces of legislation:

1. Organisation of Working Time Act 1997; and
2. Terms of Employment (Information) Acts 1994 – 2014. 

Key changes under the Act

Statement of Terms

Within five days of an employee commencing employment, the employer must notify the employee in writing of certain core terms of employment.

The five core terms to include are as follows:

• the full names of the employer and the employee;
• the address of the employer or principal place of business;
• the expected duration of a contract, if temporary or, the end date of a fixed term contract;
• the rate or method of calculation of the employee’s remuneration and the pay reference period;
• the number of hours which the employer reasonably expects the employee to work—
  • per normal working day, and
  • per normal working week.

This new obligation is in addition to Section 3 of the Terms of Employment (Information) Acts 1994 which requires an employer to provide a written statement to an employee outlining 15 core terms of employment within two months of commencing employment.

If the new five core terms are not provided on time, an employee can bring a claim to the WRC and be awarded up to four weeks’ remuneration. In order to bring a claim, an employee must have one months’ continuance service.  

Zero-hour contracts

A zero hour work practice occurs when an employer requires an employee as a matter of contract to be available for a certain number of hours per week and/or on an “as and when required basis”, without the guarantee of work.

There is a new provision under the Act; substituting section 18 of the Organisation of Working Time Act 1997, to prohibit zero hours contracts except in very limited circumstances, such as where there is a genuine casual employment requirement or the need to provide cover in emergency situations.

Minimum Payment

In the event of an employer failing to require an employee to work at least 25% of the time the employee is required to be available to work for the employer, the employee will be entitled to payment for 25% of the contract hours or 15 hours, whichever is less. The Act introduces a minimum payment for these hours calculated at three times the hourly rate of pay or three times the minimum hourly rate of remuneration established by an employment regulation order. These provisions do not apply to employees who are required to make themselves available on an ‘on call basis’ such as genuine emergency workers.

Banded hours contracts

The Act amends the Organisation of Working Time Act 1997. The Act enables employees whose actual hours of work are greater than those hours in their contract of employment to request to be placed within a band or range of hours, which better reflects their actual hours worked in the previous twelve months. The bands of weekly working hours are:

An employee placed on a band of weekly working hours shall be permitted to work hours, the average of which, shall fall within that band, for a period of at least 12 months.

If an employee thinks they are not in the correct band, he or she can bring a complaint to the WRC, and be placed in the correct band. However, no award of compensation will be made.

Anti-penalisation

An employer shall not penalise, or threaten penalisation of, an employee for invoking any right conferred on him or her by the Act, or giving evidence under this Act.

Next steps for Employers

In preparation for commencement of the Act, employers should:

• review their procedures for new hires, consider including the five core terms in the offer letter and ensure the systems are in place to provide the core terms on time;
• review current contracts to check for zero hours contracts, whether they can be justified or need to be discontinued; and
• review contracts and time sheets, look at the actual versus average hours worked, and prepare for requests from employees regarding banded hours.  

For further information, please contact Breda O'Malley bomalley@hayes-solicitors.ie or Niamh Cassidy ncassidy@hayes-solicitors.ie at Hayes solicitors.

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About the Authors

Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.

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Niamh Cassidy

Niamh is an associate solicitor in the Employment Law team at Hayes solicitors. Niamh advises both employees and employers, relating to both contentious and non-contentious employment and industrial relations matters, including recruitment, employment contracts and workplace policies, redundancies and dismissals.