The Employment (Miscellaneous Provisions) Act 2018 was signed into law on Christmas Day 2018 and commenced on 4 March 2019. The Act is intended to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours and has been described by the Minister for Employment Affairs and Social Protection as containing "the most significant changes for working conditions in a generation".

In short, the key changes are:

• 5 Core terms in 5 Days - Written notification to employees of five core terms of employment within five days of commencement
• Prohibition of  Zero Hours Contracts - Except in limited circumstances
• Minimum Payments - For employees required to be available but not called into work or sent home early
• Banded Hours Contract - To protect employees who consistently work more than their contracted hours
• Anti Penalisation - Protection for employees who invoke their rights from detrimental treatment

Q. Do I still need to provide employees with other terms of employment, for example, annual leave entitlements, place of work, etc?

Yes. The 2018 Act places an obligation on employers to provide 5 core terms, relating mainly to working hours, to employees within 5 days of commencement of employment - but it has not replaced the obligation on an employer to provide employees with a full suite of terms and conditions of employment within 2 months of commencement of employment, per the Terms of Employment (Information) Act 1994 (as amended).

Q. What if I don’t know how many hours an employee will work per day and per week?

The Act states that an employee must be informed of “the number of hours which the employer reasonably expects the employee to work (i) per normal working day and (ii) per normal working week." This will be challenging for the many employers who operate outside of the traditional working week. We suggest that employees are provided with as much information as possible, for example if an employee will work on a shift basis, the length each shift usually lasts, how many shifts a week an employee will usually be required to work and so on. Note the reference to the employer's reasonable expectation which appears to be an acknowledgement that it may not always be possible to be definitive about an employee's working hours, but an employee should be informed of what a normal working week entails.

Q. Can I still use casual workers?

Yes – the prohibition on zero hour contracts does not impact casual worker arrangements, provided that such arrangements are genuinely casual in that there is no mutuality of obligation i.e. such workers are completely free to turn down offers of work without consequence.

Q. What mechanism is set out per the Act for an employee to move to a Banded Hour Contract?

An employee makes a written request to be placed in a band of weekly hours;

The employer must place the employee in appropriate band not later than 4 weeks from the request;

The appropriate band is determined by employer on basis of average number of hours worked per week during the 12 month reference period; and

The employee is entitled to work hours which, on average, fall within that band for the next 12 months.

Note that an employer can refuse such requests in certain circumstances e.g. where the employee's average hours worked were affected by a temporary situation which no longer exists.

Q. If an employee is placed on banded hours, can I reduce their hours at a later stage?

There is no arrangement in the legislation for this. The Act states that when an employee is placed on banded hours, he or she must be provided with those hours for a minimum of 12 months. This would appear to suggest that the arrangement is not intended to be permanent, but there is no guidance as to how an employer could reduce the employee’s hours or revert back to the original contracted hours. Options such as short time hours/lay off arrangements may be applicable but care needs to be taken in order to avoid claims of penalisation.

Q. Where an employee is placed on a Banded Hours Contract, in circumstances where the employee had always refused to work unsociable hours and therefore did not work unsociable hours over the 12 month reference period, can the employer compel the employee to work such unsociable hours when the employee moves to a Banded Hours Contract?

No – because it is likely that this would constitute penalisation under the Act. Penalisation is defined broadly and includes "change in working hours" where an employee has invoked a right under the Act. In circumstances where an employee has worked in excess of his/her contractual hours over a period of 12 months without working unsociable hours, it is arguable that there are sufficient hours for the employee to continue to work per the Banded Hours Contract, outside of the unsociable hours.

Q. Is there anything in the Act on bogus self-employment?

No. The draft Bill contained a section on bogus self-employment which included potential for criminal liability where an employer incorrectly designated an employee as being self-employed/independent contractor, but this provision was not included in the Act. There are however two live private member Bills on this issue in being at the moment. This topic is one which continues to attract attention and will likely be legislated for at some point.