Transparent and Predictable Working Conditions Directive: Deadline for implementation approaches - Update

At a glance

• The Directive on Transparent and Predictable Working Conditions repeals the current Written Statement Directive and imposes new information requirements on employers.
• EU Member States had until August 2022 to transpose the new rules into their national legislation although some missed this deadline.

---

The Directive on Transparent and Predictable Working Conditions repeals the current Written Statement Directive and imposes new information requirements on employers. EU Member States had until August 2022 to transpose the new rules into their national legislation but some have missed the deadline. On 21 September the Commission sent a letter of formal notice of infringement to 19 Member States (Belgium, Czech Republic, Denmark, Ireland, Greece, Spain, France, Croatia, Cyprus, Luxembourg, Hungary, Malta, Austria, Poland, Portugal, Romania, Slovenia, Slovakia and Finland) since they had not communicated full transposition of the Directive into national law by the deadline of 1 August 2022.

Under the Directive:

• Anyone who is a worker will have the right to receive a statement of their terms and conditions within a week of starting work. The list of required particulars for all workers and employees includes core terms such as place of work, paid leave entitlement, pay, notice and details of working pattern, including in particular whether it is predictable or unpredictable.
• Where the work pattern is entirely or mostly unpredictable, the employer must state the number of guaranteed paid hours, the pay for work performed in addition to those guaranteed hours, and the reference hours and days within which the worker may be required to work.
• There will be a ban on probationary periods exceeding six months unless on an exceptional basis this is justified by the nature of the employment or the worker’s interests. Absence during the probationary period will justify an extension of equivalent duration. Any probation periods in fixed term contracts must be proportionate to the overall duration.
• It will become unlawful to prohibit workers from taking up employment with other employers outside working hours, unless this can be justified by objective grounds such as health and safety, protecting business confidentiality or avoiding conflicts of interests.
• Workers whose work pattern is unpredictable will be able to refuse an offer of work without suffering adverse consequences unless they are given reasonable notice and it takes place within predetermined reference hours and days as set out in their contract.
• Workers will become entitled to compensation if their employer cancels an assignment after a specified “reasonable deadline” (to be determined by Member States).
• Member States which permit the use of “on demand” or similar employment contracts must either place limits on their use or duration, or create a rebuttable presumption that it is an employment contract with a minimum amount of paid hours based on the average hours worked in a given period, or take other “equivalent measures” to prevent abusive practices.
• Workers with at least six months’ service will have a right to request a new form of employment with more predictable and secure working conditions and to receive a reasoned written reply within one month.
  Where mandatory training is prescribed by law, the employer must pay for it (and cannot recover the costs), it must count as working time and, where possible, it must take place during working hours.
• Workers who seek to exercise their rights under the Directive will be protected from adverse treatment or dismissal for doing so.

The Directive has a broad personal scope of application. It applies to anyone considered to be a “worker” under ECJ case law: “a person who performs services of some economic value for and under the direction of another person in return for which he receives remuneration.” It aims to ensure that the rights under the Directive cover all workers in all forms of work, including those in the most flexible non-standard and new forms of work such as zero-hour contracts, casual work, domestic work, voucher-based work or platform work. However, there is no obligation to apply the Directive to anyone who works an average of three hours a week or less over a period of four weeks – unless that person has no guaranteed amount of paid work.

The Directive does not apply to the UK, but the UK Government has already brought the written statement requirements into UK law from 6 April 2020, and has gone further than the Directive in requiring particulars to be provided by day 1.

The current status of the implementation of the Directive in certain of the 27 EU Member States is set out below:

Country	Status
Austria	No draft law yet.
Belgium	The Directive has been transposed through two legal instruments, an Act of 7 October 2022 and National Collective Bargaining agreement No.161 of 27 September 2022. The Act came into force on 10 November 2022.
Bulgaria	Law implemented by decree dated 27 September 2022.
Croatia	Amendments to the Labour Code come into effect on 1 January 2023.
Cyprus	Not being tracked.
Czech Republic	Legislative process still at an early stage.
Denmark	Draft legislation introduced, if adopted will enter into force 1 July 2023.
Estonia	Legislation adopted, in force 1 August 2022.
Finland	Amendments to the law introduced, in force 1 August 2022.
France	The Bill to transpose the Directive was voted by the Senate on 13 December 2022 and transmitted to the National Assembly.
Germany	Legislation passed, in force 1 August 2022.
Greece	Not being tracked.
Hungary	The Hungarian Labour Code has been amended to implement the Directive, effective from 1 January 2023.
Ireland	The Directive was implemented by the Irish government on 16 December 2022 by signing into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022.
Italy	Legislation implementing the Directive came into force on 13 August 2022.
Latvia	The Directive was transposed through amendments to Latvia’s Labour Law which were adopted on 16 June 2022. They came into effect on 01 August 2022.
Lithuania	Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union is transposed into the local law with effect from 1 August 2022.
Luxembourg	Draft Bill was submitted to the Chamber of Deputies on 7 September 2022. As of 20 March 2023, the Bill was passed to the President of the Chamber of Deputies undergoing amendments.
Malta	Regulations 267 of 2022, adopting the Directive, were published in the Government Gazette and transposed into Maltese law on 21 October 2022.
Netherlands	With effect from 2 August 2022, the EU Directive on Transparent and Predictable Working Conditions has been implemented in the Dutch law.
Norway	Changes proposed to the Working Environment Act to implement the EU Directive, but not yet implemented.
Poland	On 9 March 2023, the Sejm accepted some changes made by the Senate and enacted amendments to the Labour Code, implementing the Directive. This has since been signed and published in the Journal of Laws and will come into force on 26 April 2023.
Portugal	Amendments to the Portuguese Labour Code under Law 13/2023 transposes the Directive. This will come into force 1 May 2023.
Romania	Implementing legislation in force from 22 October 2022.
Slovakia	Law in force 1 November 2022.
Slovenia	Not being tracked.
Spain	Draft legislation likely to be introduced in 2023.
Sweden	Amendments to the Employment Protection Act in force 29 June 2022.