Organisation of Working Time Act

Rest Breaks - Health & Safety Legislation

Article 1.1 of the Working Time Directive which provides as follows:

“Article 1 Purpose and scope

1. This Directive lays down minimum safety and health requirements for the organisation of working time.”

In Sandra Duggan v Go-Ahead Ireland (ADJ-00029000) the employee cited sections 18 and 19 of the Safety, Health and Welfare at Work Act 2005 in her submission regarding a failure to take rest breaks.

Sections 18 and 19 of the Act set out, inter alia, the minimum facilities that an employer must provide to employees to enable them to take their breaks. Whilst the remit of the WRC does not extend to sections 18 and 19 of the Safety, Health and Welfare at Work Act, the Adjudication Officer was of the view that in order to comply with section 12 of the Working Time Act, an employer is obliged to provide adequate facilities to enable their employees to take a proper rest break.

This obligation rests solely with the employer, not the employee.

Employer Contacting Employee Out of Hours – The Right to Disconnect

The Right to Disconnect refers to an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.

In brief, the Right to Disconnect has three main elements:

1. The right of an employee to not routinely perform work outside normal working hours.
2. The right to not be penalised for refusing to attend to work matters outside of normal working hours.
3. The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).

We set out the legislative basis and recommendation of the Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Disconnect.

Failure to Pay Time-On-Call

Reservation & Customer Services Manager v Travel Agency (ADJ00026314) involved an employee who worked for a travel agency as a customer representative. As part of her duties, she was required to maintain a mobile phone to which, under emergency circumstances, clients of the travel agency could call if they found themselves in particular difficulty. The employee claimed she took 2 to 3 calls per week, whereas the employer claimed the employee took 2 to 3 calls per month.

The employee stated that the employer had committed multiple breaches of the Organisation of Working Time Act, 1997 in respect of the time she spent on call. She alleged that the time spent on call should be regarded as working time. On that basis, the employee contended that she worked an additional 123 hours per week. She was not in a position to substantiate specific examples.

Based on the totality of the evidence presented, the WRC found that the employee was not required to remain at the location determined by her employer for the period that she was on call and that she was free to lead her normal life during those times. 

Furthermore, the WRC found that the employee was not engaged in carrying out work for the employer for the entirety of the time that she was on call. Accordingly, the WRC found that the employee’s periods on call did not fall within the definition of working time as provided for under the Organisation of Working Time Act, 1997 as subsequently clarified by the Court of Justice to the European Union.

Working through 'Rest Breaks'

The employee, in this case (A Receptionist v A Hostel (ADJ00023445)), submitted a number of complaints, one of which related to the failure to provide breaks in accordance with Section 27 of the Organisation of Working Time Act, 1997. She submitted that, while in employment with the respondent company, she did not get any breaks. The employee contended that she worked 8 to 9 hour shifts with no rostered breaks provided. She stated that, although she could avail of quiet times to take food and drink, she was obliged to continue to deal with customers as and when they arose in addition to attending to phone calls as required. By way of example, she noted that her food often went cold due to these interruptions. The employer accepted the employee’s account on this matter. The respondent company noted that, while the employee did have an opportunity to have meals / tea / coffee in quiet times, these were not rostered and they had now put a more formal system in place.

The WRC noted that both parties accepted that no rostered breaks were provided throughout the employee’s 2 ½ years of employment. The fact that the employee could eat or drink while she continued to carry out her duties could not be deemed to meet the requirements of the Act. The WRC therefore awarded the employee the sum of €1,600 as compensation for the breach of these rights.

Payment for Working on Sunday

The employee, in this instance (A Restaurant Worker v A Fast Food Restaurant (ADJ00025194)), submitted multiple complaints under the Organisation of Working Time Act, 1997. One of those complaints related to her not receiving any compensation for working on a Sunday, despite having done so every week over the consignable period.

The WRC noted that, in the absence of a written statement of her terms and conditions of employment which should contain a specific provision in relation to Sunday working, the WRC determined that the complaint was well founded and ordered the respondent company to pay the employee €500 in respect of this breach.

Proving a Complaint under the Organisation of Working Time Act

The employee in this case (A Beauty Therapist v A Beauty & Hairdressing Salon (ADJ-00025776)) submitted a number of complaints, one of which related to her not receiving her daily rest periods as provided in Section 11 of the Organisation of Working Time Act, 1997 which provides that “an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he/she worked for his/her employer”.

The employee gave evidence that she did not get her tea breaks “a few times” but had no details of dates and times. She accepted it was not a major ongoing problem. She further described how there was a book of appointments and that employees were responsible for marking in their rest breaks on this book. The respondent employer submitted copious daily time sheets wherein it showed employees being recorded for rest breaks, including those of the complainant employee.

The WRC noted that there was an onus on the employee to be more specific about the details of denial of rest periods and it was therefore not satisfied that the employee concerned had given enough evidence to back up her claims. On that basis, the WRC found that the complaint was not well founded due to a lack of evidence.