Zero-hours and banded hours contracts in Ireland

"Are zero hour contracts legal in Ireland?" has had a clear answer since the Employment (Miscellaneous Provisions) Act 2018 came into force: not in most jobs. But the ban has exceptions, the term is used loosely, and the rules that replaced it (a minimum payment when you are sent home, and a right to banded hours after a year) are what most people on low or variable hours actually need. This guide covers all of them.

The ban and its exceptions

Before the 2018 Act, a zero-hours contract in Irish law meant a contract under which you had to be available for work but were promised no hours at all. The Act prohibits that arrangement except in three situations:

• genuinely casual work
• emergency cover, where the employer needs someone at short notice to deal with something unforeseen
• short-term relief, covering the employer's own staff who are absent

Outside those exceptions, a contract that requires you to be available without guaranteeing hours is not lawful. And in every case, including the exceptions, the written statement of terms you must receive within 5 days of starting has to set out the hours the employer reasonably expects you to work in a normal working day and week. A statement that says "hours: as required" or leaves the box blank is the kind that may not comply with the Terms of Employment (Information) Act 1994. The contract checker flags that item, and contract of employment: what must be in writing has the full statutory list.

The Act also sets a rule for the statement where your pattern is unpredictable: the reference hours and days within which you may be asked to work, and the minimum notice of a shift, must be in writing within 1 month.

If-and-when contracts

Much of what people call "zero hours" is in fact an if-and-when arrangement: the employer offers shifts if and when it has them, and you take them or not. Because neither side is obliged, it falls outside the Act's definition of a zero-hours contract and remains lawful.

The practical difference is small for the person working the hours, which is why the other two rules in this guide matter more than the label. Whether your contract is casual, if-and-when or something in between, the minimum payment and the banded hours right apply on the Act's terms, not the contract's.

The minimum payment when you are sent home

The Organisation of Working Time Act 1997, as amended by the 2018 Act, provides for a minimum payment where you are required to be available for work and are not given it. It applies where:

• you are called in and then sent home without work, or
• you are not given the hours your contract names, or
• you are required to be available for a set number of hours in a week and are given fewer

In those cases you are owed the lesser of 3 hours or 25% of the contract hours, paid at your normal rate or at the minimum wage rate if that is higher. So if your contract says 20 hours a week and you are rostered for none, 25% of 20 is 5 hours, which is more than 3, so the minimum payment is 3 hours' pay. If your contract says 8 hours and you are given none, 25% of 8 is 2 hours, which is less than 3, so the payment is 2 hours' pay.

The payment does not apply where the employer could not offer work because of exceptional circumstances or an emergency, or where you were sent home because of your own conduct. It also does not apply where you were offered the hours and refused them.

If the payment is not made, that is a working time complaint to the WRC under the 1997 Act. It can be made on the online form, with no fee, within 6 months of the contravention. Working hours and breaks covers the rest of the working time rules and how to make a WRC complaint covers the form.

Banded hours: the right to hours that match what you work

The second rule the 2018 Act introduced is the one with the most practical weight. If your contract states low hours but you have been working more for a long time, you can ask to be placed in a band that reflects the hours you actually work. The rule is in the Organisation of Working Time Act 1997 as amended.

The steps

1. Wait until you have 12 months' continuous service. The request cannot be made before that.
2. Work out your average weekly hours over the previous 12 months. Payslips and rosters are the evidence. The average is of hours actually worked, not hours offered.
3. Ask in writing to be placed in the band that matches the average. Keep a copy. A short email naming the Act, the period and the band is enough; the letter builder has a format for it.
4. The employer has 4 weeks to answer. If it accepts, it must place you in the band. If it refuses, it must give a reason from the Act's list.
5. Once in a band, you stay there for at least 12 months. The employer must roster you within the band's range. It is not a guarantee of a fixed number of hours, but it is a guarantee that your hours stay between the band's lower and upper limits.

The statutory bands

In the Act each band runs from its lower figure up to, but not including, the next band's lower figure, so an average of exactly 16 hours falls in band D (16 to 21) rather than band C. If your average sits close to a boundary, say which band your evidence supports and why.

The employer's grounds to refuse

The Act allows the employer to refuse only where:

• the facts do not support the band you asked for (your average over the 12 months was lower)
• there have been significant adverse changes to the business, profession or occupation
• the hours you worked were due to an emergency or exceptional circumstances
• the hours were genuinely temporary, for example covering a colleague's leave, and that cover has ended

A refusal has to be in writing within the 4 weeks and has to name the ground. A refusal on some other ground, a refusal with no reason, or silence past the 4 weeks is a contravention that can go to the WRC. The complaint is under the Organisation of Working Time Act, the time limit is 6 months from the refusal or from the end of the 4 weeks, and the WRC can direct the employer to place you in the appropriate band.

Where a collective agreement already provides for banded hours in your workplace, the Act's scheme does not apply and the agreement's scheme does instead. Ask your union representative which one you are under.

Why banded hours change other calculations

Being placed in a band affects more than your roster. Annual leave, public holiday pay and statutory sick pay are all calculated on hours worked or normal pay, and a stable band makes those entitlements predictable rather than argued over every month. Annual leave entitlement and public holidays explain how the hours feed into each. A banded contract also removes the "contract says 8 hours" argument when it comes to redundancy pay, which is worked out on normal weekly pay; see redundancy in Ireland.

Part-time and the minimum wage

Variable-hours workers are part-time workers under the Protection of Employees (Part-Time Work) Act 2001, with a right to the same treatment, pro rata, as comparable full-time staff. The minimum wage applies to every hour worked at the rate for your age, and a pay reference period of up to a month is used to check it. If being called in, waiting and sent home is a regular pattern, it is worth checking whether your pay over the reference period still reaches the minimum wage once the unpaid time is counted; the minimum wage checker does the sum. Part-time and agency workers' rights covers the equal treatment rules.

Keeping the evidence

Every rule in this guide turns on hours actually worked. Keep your own record: a note of each shift's start and end, screenshots of rosters as they are published, and your payslips. The employer must keep working time records, and the WRC can ask for them, but a request for a band or a minimum payment complaint is far stronger when you can show the figures yourself.

Where this leaves you

The three questions to ask are: does your written statement set out your expected hours, as the Act requires; were you paid the minimum 3 hours or 25% on the days you were called in without work; and, after 12 months, do your contract hours match the hours you really work? Run your contract through the contract checker to see whether the hours item is there and in what form. If the hours are the problem rather than the paperwork, the banded hours request above is the route, and the WRC overview explains what happens if the employer does not answer within the 4 weeks. Terms used here are in the glossary.