The Terms of Employment (Information) Act, 1994 (as amended) provides, among other matters, for the issue to employees of certain statements of terms of employment. These statements are as follows:
- Day 5 Statement
- Written statement of terms of employment
- Statement to employee required to work outside the State
- Statement issued on request to employees who held a contract before 16 December, 2022
- Statement issued on request to employees who held a contract before commencement of the 1994 Act (16 May 1994)
Since 16 December 2022, new legislation introduced an expanded definition of “contract of employment” and, therefore, the Act applies to any person
- Working under a contract of employment or apprenticeship,
- Working under any other contract whereby an individual agrees with another person personally to execute any work or services for that person,
- employed through an employment agency,
- where an individual agrees with a person carrying on the business of an employment agency to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), or
- in the service of the State (including members of the Garda Síochána and the Defence Forces, civil servants and employees of any local authority, health board, harbour authority or vocational education committee.
In the case of agency workers, the party who pays the wages is the employer for the purposes of this Act and is responsible for providing the written statement.
Day 5 Statement of Terms (Section 3(1A) Statement)
An employer must notify each new employee, in writing, within five days of commencement of employment, of the following core terms of employment:
- the full names of the employer and the employee;
- the address of the employer or of the principal place of business in the State;
- the place of work, or where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;
- the title, grade, nature or category of work for which the employee is employed or a brief description of the work;
- the date of commencement of the contract of employment;
- the duration and conditions relating to a probationary period, if applicable;
- 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;
- the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act, 2000;
- the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week;
- any terms and conditions relating to hours of work (including overtime);
- If applicable, the employer’s policy on the manner in which tips or gratuities and mandatory charges are treated.
Written Statement of Terms (Section 3(1) Statement)
An employer must also provide each new employee with a written statement of terms of employment within one month of commencement of employment. The written statement must include the following:
- The full names of the employer and the employee
- The address of the employer
- The employee may request a written statement of the average hourly rate of pay
- Whether pay is weekly, fortnightly, monthly or otherwise*
- Terms or conditions relating to paid leave (other than paid sick leave)*
- Any terms or conditions relating to incapacity for work due to sickness or injury*
- Any terms or conditions relating to pensions and pension schemes*
- Periods of Notice or method for determining periods of notice*
- A reference to any collective agreements which affect the terms of employment
- A reference to any appliable REA or ERO and where the employee may obtain a copy of same
- The training entitlement, if any, provided by the employer
- If the employee is a temporary agency worker, the identity of the user undertakings
- If the work pattern is entirely or mostly unpredictable, the statement must state:
- that that work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours
- the reference hours and days within which the employee may be required to work
- the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with Section 17 of the Organisation of Working Time Act 1997, and
- where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.
In relation to items marked with an asterisk (*) above, the employer may, as an alternative to providing all the details in the statement, use the statement to refer the employee to certain other documents containing the particulars. For example, such reference could be to an Employment Regulation Order, Registered Employment Agreement, or collective agreement relating to the particular employment involved. However, the separate documentation referred to should be readily accessible to the employee for reference purposes.
Employment Outside the State (Section 4 Statement)
Where an employee is required to work outside of the State for a period of not less than one month, the employer is obliged to add the following particulars to the written statement:
- a) the country or countries in which the work outside the State is to be performed and the anticipated period of employment outside the State,
- b) the currency in which the employee is to be paid in respect of that period,
- c) any benefits in-kind or cash payable to the employee in respect of the employment outside the State,
- d) any terms and conditions governing the employee's repatriation.
These details, together with the written statement, must be provided to the employee prior to his/her departure from the State.
Where the employee is a posted worker, the statement of terms, in addition to the particulars at a) to d) above, must contain the following:
- The remuneration to which the employee is entitled under the applicable law of the Member State;
- Where applicable, any allowances and arrangements for reimbursing expenditure on travel, board and lodging, and
- The link to the official national website developed by the host Member State concerning the posting of workers and the provision of services - Posted Workers - Workplace Relations Commission
Employees who entered a contract before 16 December 2022 may request the employer to furnish a new statement (Section 5A(1) Statement) that must contain the particulars in the Day 5 Statement and the Statement of Terms. If the employee is working outside the State then those additional particulars must also be provided.
Employees who entered a contract before 16 May 1994 may also make a written request to an employer to furnish a new statement (Section 6(1) Statement) to include new Section 3 particulars. Upon receipt of a written request, an employer must issue this "Day 5" statement within 2 months of the date of the request.
Statements must be signed and dated by or on behalf of the employer, be in writing, and must be transmitted on paper or, provided that the information is accessible to employee, can be stored and printed and proof of transmission or receipt retained by employer, in electronic form.
Notification of Changes in the Written Particulars
An employer is required to notify an employee of the nature and date of any change to the particulars contained in the written statement not later than the day on which the change takes effect. In the case of a change which results from an employee being required to work outside the State, the employer must notify the employee of such change prior to his/her departure from the State.
The requirement to notify the employee of any change in the particulars set out in the written statement does not apply if the change results from a change in legislation, administrative provisions or collective agreements to which the employer has referred the employee in the written statement.
Information regarding probationary periods, parallel employment, transition to another form of employment, mandatory training, and minimum predictability of work are available on the WRC website here Transparent and Predictable Working Conditions - Workplace Relations Commission
Employee Protection against Penalisation
The Employment (Miscellaneous Provisions) Act 2018 introduces new provisions to protect employees against penalisation for invoking their rights under the Terms of Employment and Information Act 1994.
The new provisions provide 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 this Act (e.g. refusing to conspire in falsifying contracts of employment) (iii) Giving evidence in any proceedings under this Act (e.g. being a witness for somebody else pursuing a case under the Act in the WRC or Labour Court) (iv) Giving notice of the intention of doing any of the above.
Penalisation is defined broadly in the new legislation to mean any detriment to the employee’s terms and conditions of employment including:
(a) suspension, lay-off or dismissal or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.
An employee who believes they have been penalised for invoking a right under the 1994 Act (as amended) may refer a complaint to the WRC.
Where a complaint is upheld, an employee may be awarded compensation not exceeding four weeks’ remuneration.
Complaints to the Workplace Relations Commission (WRC)
Employees may refer a complaint to the WRC where they feel their employer has breached the Terms of Employment (Information) Act, 1994 (as amended). Complaints may include, amongst others, failure to provide a statement of the core terms of employment within 5 days, failure to provide a statement within 1 month or for providing a statement that is deliberately false or misleading.
Where a complaint is upheld, an employee may be awarded compensation not exceeding four weeks’ remuneration.
An employee must have continuous service of at least 4 consecutive weeks with an employer before they are entitled to refer a complaint for adjudication to the WRC. However, an employee must have continuous service of more than 1 month in relation to contraventions of Section 3(1A) (Day 5 Statement).
The Terms of Employment Information Act, 1994 Act has been amended and revised over time to effect changes to the particulars to be included in statements and to provide for new statements. The substantive changes in this regard were provided in the following legislation: -
- National Minimum Wage Act, 2000 (irishstatutebook.ie)
- Industrial Relations (Amendment) Act 2019 (irishstatutebook.ie)
- Employment (Miscellaneous Provisions) Act 2018 (irishstatutebook.ie)
- Payment of Wages (Amendment)(Tips and Gratuities) Act 2022 (irishstatutebook.ie)
- S.I. No. 686/2022 - European Union (Transparent and Predictable Working Conditions) Regulations 2022 (irishstatutebook.ie)