by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
We are being asked many questions these days on various legal aspects of Remote Working.
These issues range from data protection/confidentiality issues to health and safety obligations.
Another issue that is regularly under consideration is an employer’s duty regarding employees’ working hours, rest periods and rest breaks. This is naturally more difficult to do in a home / remote working environment where usual record keeping systems may not be available to the same extent.
The key working time and breaks requirements under the Organisation of Working Time Act 1997 (the “Act”) are clearly set out and well established. This includes a maximum average working week of 48 hours over a prescribed reference period (generally 4 months). Other obligations include the duty to take prescribed rest breaks and rest periods. The Act puts a mandatory obligation on employers and states that employers “shall not permit” such excessive working hours.
However, what happens when an employee claims that this has not happened and that the weekly average threshold has been breached?
Notwithstanding the very clear statutory obligations, our experience is that not all employers are compliant. Nevertheless, arguably surprisingly, employee complaints to the Workplace Relations Commissions (WRC) in this area are not as common as one might expect. Where WRC complaints are issued, many occur in the context of a broader dispute over termination of employment or other issues.
The WRC and (on appeal) the Labour Court have been very clear that the onus is on the employer to prove compliance with these obligations through maintenance and production of records. Indeed, the Act (section 25) is very clear in this regard and states that employers must, at all times, keep such records for a period of at least 3 years after their making at the employees’ place of work.
In its various case law pronouncements in the area the Labour Court has been clear on where the obligation lies. In the event of an employer being unable to prove compliance through production of records, this is likely to be fatal to an employer’s defence of any statutory claim.
Interesting cases include the Kepak case from 2018 (WTC/18/18), which at the time was sometimes referred to as a “right to disconnect” case. Briefly, this case involved an employee who claimed that she was expected to work in excess of the 48 hour statutory maximum period imposed by section 15 of the Act. The Court focused on the fact that the respondent employer failed to keep a proper record of the claimant’s working hours. The Court also noted that the evidence adduced by the employer did not address the question as to whether the employee work excessive hours in the relevant period. It ultimately awarded her €7,500.
We are still waiting to see the full fall-out from the pandemic. Once the WRC and Labour Court get fully up and running again and issue more decisions, we will see adjudication on various types of disputes. Some of these may well be about working time. Employers should be well aware of the importance of keeping records and being able to prove compliance with these important statutory rules. While this requirement has always existed, it is no doubt complicated by the remote working environment that many employees will continue to operate in.
In particular, remote working may further compound the issue as the distinction between the traditional workplace environment and the home becomes blurred. This may lead to employees working longer hours and failing to “disconnect”, as discussed in the Kepak case.
Breach of employer obligations with regard to break and rest periods, as set out in the relevant sections of the Act, may potentially occur where employees are unaware of statutory requirements. As such, employers must actively ensure that their employees are availing of the required rest periods.
While there are many different forms of possible record keeping, template records are available on the Workplace Relations Commission’s website.
About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.