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: