On 16 April 2019 the European Parliament adopted a provisional agreement for a new Directive on transparent and predictable working conditions in its plenary session.
The directive proposes that all workers in the EU should have the right to:
- more complete information on the essential aspects of their work, to be received by the worker, in writing, within a short time of starting the job (rather than up to two months afterwards). Essential information within seven days from employee’s first working day, supplementary information within one month
- a limit to the length of probationary periods at the beginning of the job
- seek additional employment, with a ban on exclusivity clauses and limits on incompatibility clauses
- know a reasonable period in advance when work will take place, for workers with very variable working schedules determined by the employer, as in the case of on-demand work
- receive a written reply to a request to transfer to another more secure job
- receive cost-free the mandatory training that the employer has a duty to provide.
The proposal has a broad personal scope of application. It aims to ensure that these rights cover all workers in all forms of work, including those in the most flexible forms of work such as zero-hour contracts, casual work, domestic work, or on-call work. It also comes with targeted provisions on enforcement, to make sure that workers in the workplace effectively benefit from these rights.
Implications and action for the NHS
The UK will have three years from the date of entry into force to implement this directive (unless in the unlikely event that we leave the EU without a deal, or negotiate an opt-out from this policy area). Government will need to consult upon and introduce UK implementing legislation by this deadline.
The directive says that: "member states may provide, on objective grounds, that the provisions …shall not apply to civil servants, public emergency services, the armed forces, and to police authorities, judges, prosecutors, investigators and other law enforcement services". It is debatable whether healthcare workers (and if so, which categories of these workers) might be regarded as providing 'public emergency services'.
NHS Employers will, if applicable, compare and contrast the legislative provisions with current employer obligations and practice and, in partnership with NHS trade unions, identify groups of employees affected, pinpoint possible problems or issues for employers or employees and support them in complying with the new rules.
Possible areas that will need addressing (unless all categories of healthcare workers are exempted)
- Lead employers dealing with a lot of employment contracts could find the tight deadlines for providing information challenging, especially for junior doctor contracts involving a change of employer and work schedules every six months
- Right to predictability of work for workers with varying work schedules, e.g. on-call
- Details of mandatory training entitlement (= training required by EU or national law or by collective agreement, free of cost to employee)
- Explore implications of ban on exclusivity clauses and restrictions on incompatibility clauses for workers who may be affected (e.g. staff doing locum and agency work in addition to main employment; GP “out of hours” work; “as and when” contracts). Exclusivity can be justified on grounds of health and safety of workers, protection of business confidentiality, integrity of the public service or conflict of interest.
Member states will have to make provisions for enforcement mechanisms for preventing discrimination, victimisation, dismissal or other adverse consequences, with penalties in the event of employer non-compliance.