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The Employment (Miscellaneous Provisions) Act 2018

By: Shirley Fogarty | Posted on: 20 Jan 2020

The Employment (Miscellaneous Provisions) Act 2018

The start of a new year is always a good time for Employers to assess how they are doing business and what improvements they can make to ensure that their business is in compliance with its legal requirements.

One such piece of legislation which employers need to be very mindful of, and which has been described as “one of the most significant pieces of employment legislation in a generation”, came into effect in March 2019.

The 2018 Act makes changes to four main pieces of legislation:-
1. Terms of Employment (Information) Act 1994;
2. Organisation of Working Time Act 1997;
3. Workplace Relations Act 2015.
4. National Minimum Wage Act 2000.

Key Changes:

1. Changes to the Terms of Employment (Information) Act 1994.
(A) Within five days of an employee commencing employment, the employer must notify the employee in writing of certain core terms of employment. This new obligation is in addition to the full written terms of employment required to be given to employees under the Terms of Employment (Information) Act 1994, which must be given within two months from the commencement of employment. With effect from the 4th March 2019, the employer, in addition to its obligations under Section 3 of the 1994 Act, must now within five days provide the following to an employee:- 

(i) The full names of the employer and the employee.
(ii) The address of the employer.
(iii) The expected duration of the Contract in the case of a temporary Contract, or the end date if the Contract is a fixed term Contract.
(iv) The rate or method of calculation of the employee’s pay.
(v) The number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

If the above five terms are not provided on time, an employee can bring a claim to the Workplace Relations Commission and be awarded up to four weeks’ remuneration. The employee, however, must have one month’s continuous service in order to bring a claim. Moreover, existing employees may also make a written request to an employer for a “day five” statement and, upon receipt of the written request, the employer must issue the statement within two months of the date of the request.

(B) Penalisation
The 2018 Act introduces new provisions to protect employees against penalisation for asserting their rights under the Terms of Employment (Information) Act 1994. The provision provides that an employer shall not penalise or threaten penalisation for:-

(i) Invoking any right under the Act.
(ii) Opposing in good faith an action that is unlawful under the Act.
(iii) Giving evidence in any proceedings under the Act.
(iv) Giving notice of the intention of doing any of the above.

Penalisation is broadly defined to mean any detriment to the employee’s terms and conditions of employment. An employee who believes that they have been penalised may refer a complaint to the Workplace Relations Commission and, if their complaint is upheld, they may be awarded compensation not exceeding four week’s remuneration.

2. Changes to the Workplace Relations Act 2015.
Where a Workplace Relations Commission Inspector encounters non-compliance in relation to the five-day statement obligations under the 2018 Act and has grounds for believing that an employer has committed an offence, then an Inspector may issue a fixed payment notice as an alternative to initiating prosecution proceedings. The 2018 Act also creates the following criminal offences:-

(i) An employer who, without reasonable cause, fails to provide an employee with a day five statement within one month of commencement of employment will be guilty of an offence.
(ii) An employer who deliberately or recklessly provides false or misleading information as part of the day five statement will be guilty of an offence.
(iii) A person convicted of such an offence under the new Act may be fined, with a maximum fine of €5,000 or imprisonment for a term not exceeding twelve months, or both.

3. Changes to the Organisation of Working Time Act 1997.
(A) Section 18 of the 1997 Act is amended to prohibit zero-hour Contracts except in certain circumstances, such as, where the work is of a casual nature, the work is done in emergency circumstances or it is short-term relief work to cover routine absences for the employer.

Section 18 of the 1997 Act is also amended so that there is a new minimum payment entitlement in certain circumstances. The new minimum payment will be payable on each occasion to an employee to whom the section applies is called into work and does not receive the expected hours of work. 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 fifteen hours, whichever is the lesser. 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. The provisions, however, do not apply to employees who are required to make themselves available on an “on-call” basis, such as emergency workers.

(B) Banded hours Contracts.

The Act introduces a new right for employees whose Contracts of Employment or statement of terms does not reflect the reality of the hours that they work. In such circumstances, employees can request to be placed within a band of, or range of hours which better reflect their actual hours worked in the previous twelve months. The band 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 twelve months. However, the Act does provide reasonable Defences for employers who refuse an employee’s request for any one of the following reasons:-

1. The facts do not support the employee’s claim.
2. Significant adverse changes have impacted on the business.
3. Emergency circumstances, or
4. Where the hours worked by the employee were due to a genuinely temporary situation.

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

4. Changes to the National Minimum Wage Act 2000.

Employers should be aware that under the new Act, wage rates for employees under eighteen and those over eighteen have been simplified and will be based solely on age. Trainee rates of pay have been abolished.

From the 1st February 2020 the National Minimum Wage will increase to €10.10 per hour.