by Ciara Ní Longaigh, Solicitor in Ronan Daly Jermyn’s employment group
Ensuring that employees get suitable rest breaks is vitally important in maintaining a happy and healthy workforce. However, the reality for employers is that it can be difficult to provide employees with designated breaks in a bustling environment and many employers are unaware of whether employees are taking proper and sufficient breaks. Having proper procedures and time recording systems in place not only ensures that an organisation meets their statutory obligations but can also be beneficial in identifying the reasons why employees are not getting an opportunity to take their rest breaks, such as understaffing during busy periods or a lack of awareness around entitlements.
Under the Organisation of Working Time Act 1997 (“the 1997 Act”), employers are under an obligation to ensure that their employees receive their statutory entitlement to breaks. Section 12 of the 1997 Act provides that that an employee will be entitled to 11 hours consecutive rest per 24-hour period. The consecutive rest periods are required from a health and safety point of view to ensure that employees have a minimum period of sleep. Where an employee works over four and half hours, they will be entitled to 15 minute break and where an employee works more than six hours will be entitled to 30 minute break which can include the first break.
The 1997 Act also provides specific protections for employees who work during the night. “Night Time” is defined as the period between midnight and 7.00 a.m. the next morning and “night worker” as an employee –
a) who normally works at least 3 hours of his or her daily working time during night time, and
b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent, of the total number of hours worked by him or her during that year.
Any night workers who are involved in employment where there are special hazards or heavy physical or mental strain are subject to a limit of 8 hours of night work in a 24 hour period.
Of note, certain categories of workers are exempted from the above entitlements. The Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) set out the various categories of activities undertaken by employees which will be exempt from the applications of sections 11, 12 and 13 of the 1997 Act. The categories include an activity in which the employee is regularly required by the employer to travel distances of significant length, an activity of a security or surveillance nature which requires the continuous presence of the employee at a particular place, production in the press, provision of ambulance, fire and civil protection services, industrial activity in which work cannot be interrupted, as well as agriculture and tourism.
The Labour Relations Commission previously developed a Code of Practice on Compensatory Rest Periods which gives guidance on arrangements which may be utilised in circumstances where because of exemptions or collective agreements, emergencies or unforeseeable circumstances, employees cannot avail of their rest breaks. The Code provides that exempted employees who have missed their rest breaks should receive equivalent compensatory rest as soon as possible after the statutory rest break has been missed. While the Code recognises that neither the 1997 Act nor the EU Directive on Working Time specify any timeframes within which compensatory rest must be available, it is highlighted that the employer should have regard to the particular place of employment and the relevant health and safety concerns in terms of adequate rest. The Workplace Relations Commission have noted that the principal purpose of the legislation is to ensure that breaks are actually taken and employees should not be paid to forego rest breaks as it is a measure to protect their health. Section 5 (2) of the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (“the 2001 Regulations”) provides a defence for an employer where they have informed employees of their rest break entitlements and have provided employees with the procedures to be followed should an employee not be able to avail of a particular rest break.
Maintaining Working Time Records
Section 25 of the 1997 Act provides that an employer is obliged to keep certain records in relation to working time of employees for at least 3 years. The 2001 Regulations provide that where there is no clocking in facilities, a form to record the days and hours worked each week by each employee must be kept by the employer in the format that is set out in the regulation, Form OWT 1.
If an employer has failed to comply with the requirements of section 25 of the 1997 Act, the burden of proof is on the employer to demonstrate that the statutory obligations were complied with and employees did receive their rest breaks.
Recent Case Law
In July 2018, 14 employees were awarded between €750 and €1000 each by the Workplace Relations Commission for the denial of their rest breaks by their employer, Paddy Power. The employer in these cases had failed to show satisfactory evidence that its employees had been able to take the uninterrupted breaks which they were entitled to. The employer made no reference to rest breaks in the staff handbooks nor was there any information concerning same on display in their stores. The employer did not have a clocking in facility and had failed to comply with the 2001 Regulations.
The Adjudicating Officer was of the view that the employees in this case had to be at the disposal of their employer for the entirety of their rest breaks and therefore, that these were not sufficient rest breaks for the purposes of the 1997 Act. He was also of the view that the electronic point of sale system which the employer contended measured employees’ breaks was not a sufficient method of measuring same.
On the 10th January 2019, the Labour Court issued a recommendation that a payment of €500 in the form of tax-efficient vouchers be made by Tesco to 10 employees over their alleged failure to receive paid breaks between 2008 and 2013. While the staff handbook and the employment contracts of the employees concerned provided for 15 minutes’ paid breaks if employees were rostered for 4.5 hours or more, the store did not apply any proper clocking arrangement. It was noted that the lack of definite records, as well as the lapse of time since the issue complained of first arose, meant the Court did not believe it was reasonable to consider applying full retrospective payment as claimed in all the circumstances.
How to be Compliant
Even in a busy work environment, employers must be cognisant of their employees’ rights and entitlements in relation to statutory rest breaks. Maintaining an efficient time recording system will ensure that employees are getting proper breaks and will provide the employer with a clear record of same. Such records have to be maintained for at least three years and recent case law indicates that employers should actively monitor such time recording systems in order to identify and rectify issues and of course any such monitoring system must be in compliance with your data protection obligations.
About the author
Ciara is a solicitor in Ronan Daly Jermyn’s employment group. She advises on a broad range of employment related matters including redundancies, wrongful and unfair dismissal, the disciplinary process, data protection and freedom of information, industrial relations and equality issues. She has experience in advising in relation to company policies, procedures and contract reviews. Ciara has also worked on insurance defence claims in respect of employment related personal injury proceedings, including bullying and harassment and stress claims.
Ciara completed her traineeship with Ronan Daly Jermyn and joined the firm as a solicitor in December 2018