The Employment (Miscellaneous Provisions) Act 2018

The Employment (Miscellaneous Provisions) Act 2018 (the “Act”) came into effect on 4 March 2019. The main purpose of the Act is to provide certainty and predictability of working hours for workers engaged in casual employment.

The Act will immediately affect all employers, with the Minister for Employment, Affairs and Social Protection describing it as “one of the most significant pieces of employment legislation in a generation”. The measures contained in the Act will be of particular relevance in areas where flexible working conditions are common, such as hospitality and retail sectors.

1. Zero Hours Contracts
   A zero hours contract requires an employee to be available for work for a certain number of hours per week, or whenever required by the employer, but does not have specified hours of work in their contract.
   The Act now prohibits zero hours contracts, subject to very limited exceptions. These may include genuine casual work, emergency cover or short-term relief work.
2. Minimum Payments
   Under the Organisation of Working Time Act 1997, employers are now required to compensate employees who are required to work less than 25% of their contracted hours in a week or are not required to work at all. The employee will be entitled to the equivalent of either 25% of the possible available hours or for 15 hours, whichever is less. This minimum payment is calculated at three times the national minimum wage.
3. Introduction of Banded Hours
   The main purpose of the Act is to improve security and predictability of working hours for employees. Employees now have an entitlement to a banded hours contract where their contract does not reflect the hours actually worked over a specific period of time.
   Banded hours are designed to reflect the reality of what an employee is habitually working. Employees are now entitled to request to be placed in a band of hours that reflects the hours they have worked over a 12 month reference period. The section will not apply to an employer who has entered into a banded hour arrangement by collective bargaining with their employees.
   The request must be made in writing and an employer must comply with the request within four weeks. However, an employer can refuse the request in the following circumstances:
   • where there is no evidence to support the claim in relation to the hours worked in the reference period;
   • where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period;
   • where the average of the hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.
4. Implications of the new Act
   The Act contains significant changes for employers. These are summarised as follows:-4.1 Employers now need to provide specific information to new employees regarding their terms of employment within five days of commencement of employment. Failure to comply with this provision is an offence. Further details are provided in a recent article by Laura Graham click here;4.2 A minimum payment will be payable to an employee where they are called into work but sent home again without having worked or without having received any compensation. This new minimum payment is three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set out in an Employment Regulation Order (if one exists and for as long as it remains in force);4.3 As noted above, there is now a mechanism for employees to argue that the actual hours they work are not accurately reflected in their contract. If there is a difference between the contracted hours and the reality of their working hours over a 12 month reference period, they can seek to be placed in a band of hours that reflects the hours they actually work. There are eight relevant bands in the legislation ranging over various hours;

   4.4 Additionally, there are anti-victimisation provisions contained in the Act to prevent any penalisation of employees who seek to exercise their rights. Penalisation is widely defined in the legislation to mean any detriment to the employee’s terms and conditions of employment.

It is recommended that employers review their current contracts of employment to ensure they contain (at a minimum) the five core terms and that they are in a position to issue contracts within five days of commencement of employment. Employers should take steps to update the contracts of employees who regularly work over their contracted hours and finally, employers should discontinue use of any zero hours contracts that fall outside the exceptions contained in the legislation.

For further information please contact lgraham@reddycharlton.ie