Lists the key entitlements under the working time regulations and covers the 48 hour week, breaks during work, daily rest entitlement, weekly rest periods, compensatory rest, annual leave, Sunday working and night work in more detail. Explains the provisions of the General Exemption Regulations including employees travelling long distances, security or surveillance work and continuity of production or production. Also covers case law on employees with no fixed place of work and working time and working time records.
The Organisation of Working Time Act 1997 provides employees with a number of key entitlements in relation to minimum rest periods and maximum working hours.
- a 48 hour maximum working week
- a daily rest period of 11 consecutive hours
- a break of at least 15 minutes for every four hours 30 minutes worked
- a weekly rest period of at least 24 consecutive hours in each period of seven days
- an eight hour limit on the working hours of night workers.
- compensation for working on a Sunday
The Act and its supplementary regulations, govern the working conditions of the majority of workers in Ireland.
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48 hour week
The average working week is calculated over a four month period, six months where the work is subject to seasonality or six to 12 months where there is a collective agreement between employees and employers which has been approved by the Labour Court. The average working week for night workers is calculated over a two month period. Statutory annual, sick, maternity, parental or adoptive leave, and lunch and tea breaks must be excluded when calculating the average hours worked.
The Act does provide that this does not apply to a person the duration of whose working time … is determined by himself or herself... which only covers those in very senior management positions such as CEO or CFO.
Breaks during work
An employer cannot require an employee to work for a period of more than four hours and 30 minutes without allowing them a break of at least 15 minutes. In addition an employer cannot require an employee to work for a period of more than six hours without allowing them a break of at least 30 minutes. This break may include the 15 minute break due after four hours 30 minutes. The Act makes no reference to payment for such breaks.
A break has to take place close to the middle of the work period. Allowing an employee a break at the end of the day is not regarded as satisfying the requirements contained in sub-sections 1 and 2 of section 12, while a break too close to the beginning of a shift might be insufficient compliance. Again the restriction is on the employer requiring the worker to work without a rest period. There is no restriction on the employee simply giving up a break. That said, merely stating that an employee can take rest breaks and not putting in place proper procedures to ensure the employee receives these breaks does not discharge the duty on the employer.
There are special regulations for shop employees working between 11.30am and 2.30pm entitling them to a break of one hour under the Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998.
Daily rest entitlement
An employee is entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which they work for their employer. The daily rest provision is an entitlement of the worker. Therefore, while an employee may not be instructed to work for more than 13 hours, there is no prohibition on an employee volunteering to work for more than 13 hours. The daily rest period is unlike the maximum working week provision under which an employer is forbidden from permitting an employee to work more than an average of 48 hours.
The entitlement to a daily rest period does not apply where:
- An employer is, subject to a requirement to provide compensatory rest period(s), permitted to instruct an employee to work for a period in excess of 13 hours per 24 hour period where the worker falls within one of the categories designated in the General Exemption Regulations 1998 (see section below).
- A collective agreement has been registered by the Labour Court under section 24 and the agreement provides for compensatory rest.
- There is a change in shift or where work is split up over the day as provided in section 4 of the Act.
- There are exceptional circumstances or an emergency, the consequences of which could not have been avoided despite the exercise of all due care, or there are unusual or unforeseeable circumstances beyond the employer’s control.
- The work falls under section 3(3) of the Act which enables the minister to exempt certain categories of workers from specified provisions of the Act, where the inherent nature of the activity is such that, if the provision concerned were to apply to a said person, the efficient operation of the service would be adversely affected. For example, the Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 exclude roles such as prison officer, fire officer and customs officer from the application of the daily rest requirements.
Weekly rest period
Section 13 entitles an employee to an uninterrupted break of 35 hours in each period of seven days. It provides that an employee must in each period of seven days, be granted a rest period of at least 24 consecutive hours. This rest period must begin immediately after a daily rest period of 11 hours. The break must, unless the contract states otherwise, include Sunday. Accordingly, an employee is, unless the contract states otherwise, entitled to be free from Saturday at 1.00pm.
The employer may in lieu of granting the rest period in the first period of seven days, grant two rest periods of at least 24 hours in the next week. The periods granted may, at the discretion of the employer, be consecutive or non-consecutive. The postponed weekly rest period, if consecutive, may only begin at the end of a period of daily rest. Where the employer postpones the weekly rest period until the following week and organises a break in two periods of 24 hours, then each period must be preceded by a daily rest period.
The Labour Relations Commission (now the Workplace Relations Commission (WRC)) has issued a code of practice on the issue of compensatory rest which suggests that an employee is only entitled to the period of rest which the worker has missed.
Section 19 of The Organisation of Working Time Act 1997 (OWTA) sets out an employee's entitlement to annual leave which is calculated in accordance with the formulae contained in the Act.
A full-time employee is entitled to four working weeks in a leave year in which they work at least 1,365 hours (unless it is a leave year in which the employee changes employment).
Section 86 of the Workplace Relations Act 2015 amends the Organisation of Working Time Act 1997 and provides that Irish employees who are absent on certified sick leave are entitled to accrue annual leave and take such leave within the period of 15 months after the end of that leave year. Such accrual is limited to the 20 statutory leave annual leave days and does not entitle an employee to accrue contractual annual leave days over and above this amount (unless specified by the employer).
The amendment is as a result of a number of decisions from the Court of Justice of the European Union (CJEU), which started with the Stringer/Schultz Hoff case in 2009, and are authority for the proposition that sick leave cannot dilute the entitlement to annual leave. It was subsequently decided in the case of KHS AG v Schulte that national law could impose a cap on the unlimited accrual of annual leave during successive years of absence on sick leave with a 15 month carry over period deemed appropriate in this case.
Previous Irish decisions highlighted a contradiction between the Irish position under the Act and the decisions of the CJEU. Prior to the amendment, employees accrued entitlement to annual leave based on the number of hours worked. The Act was silent on how time spent on sick leave was regarded for the purposes of annual leave calculations. The CJEU, however, identified that there is a distinction between annual leave and sick leave. Annual leave is given to workers to enable them to rest and enjoy a period of relaxation and leisure. The purpose of sick leave is different. It is given to workers so that they can recover from an illness.
The amendment was welcomed by employers, as it clarified the confusion which had arisen on foot of the European case law.
There are nine public holidays in a year. In addition to annual leave, an employee is entitled to one of the following:
- a paid day off on the day determined to be a public holiday
- a paid day off within a month of that day
- an additional day of annual leave
- an additional day’s pay.
It is at the employer's sole discretion as to which of the above options is chosen. An employee can ask their employer to make such an election 21 days before the public holiday is due and an employer is required to notify the employee of the options elected at least 14 days before that holiday. If the employer fails or refuses to notify the employee, then the default will be that the employee is entitled to a paid day off on that day or, in a case in which that option does not apply because the employee would not otherwise be working on that day, the employee will be entitled to an additional day’s pay.
For an employee to be entitled to a public holiday, the employee must have worked for the employer at least 40 hours during the period of five weeks ending on the day before the public holiday. An employee will not be entitled to the benefit of the public holiday if they are absent the day immediately before the public holiday for the following reasons:
- The employee is absent in excess of 52 weeks by reason of an injury sustained in an occupational accident.
- The employee is absent in excess of 26 consecutive weeks by reason of an injury sustained by the employee in any accident or by reason of any disease from which the employee suffers or suffered.
- The employee is absent in excess of 13 consecutive weeks caused by any reason not referred to above but where the absence is authorised by the employer including a lay off.
- The employee is absent by reason of a strike in the business in which the employee is employed.
Public holidays should not be confused with bank holidays. For instance, Good Friday is a bank holiday and not a public holiday.
Section 14 of the 1997 Act provides that, if an employee is required to work on a Sunday, they are entitled to a premium which may consist of a payment or time off in lieu or a combination of both. The Labour Relations Commission (now the WRC) has prepared a code of practice on Sunday working in the retail trade.
Section 16 of the Act imposes particular restrictions on the working time of night workers. A night worker’s normal hours of work should not exceed an average of eight hours in any 24 hour period. The reference period depends on whether the employee is an ordinary night worker or a special category night worker. In the case of an ordinary night worker the reference period is two months. In the case of special category night workers the eight hour limit may never be exceeded. A special category night worker is a worker who, following the carrying out of a safety assessment, is recognised as particularly vulnerable in a night work environment, for example, a pregnant night worker.
The Organisation of Working Time (General Exemption) Regulations 1998 as amended exempt (subject to a number of further exemptions) persons employed in the activities listed below from the application of sections 11,12,13 and 16 of the 1997 Act
Employees travelling long distances
Where an employee is regularly required by the employer to travel distances of significant length either from their home to the workplace or from one workplace to another workplace, including offshore work, they would be exempt from the Act. This enables workers with heavy travel commitments to work longer hours for a short period in order to complete the task more quickly.
Security or surveillance work
Where an employee undertakes work of a security or surveillance nature to protect persons or property which requires the continuous presence of the employee at a particular place or places, the limits do not apply. In particular, this would cover the activities of a caretaker or security guard.
Continuity of production or provisionWork in which it is either foreseeable that the rate at which production or the provision of services takes place will vary significantly from time to time or employees are directly involved in ensuring the continuity of production or the provision of services may be exempt. In particular, any of the following activities may be covered by the Regulations:
- provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment
- provision of services at a harbour or airport
- production in the press, radio, television, cinematographic, postal or telecommunications industries
- provision of ambulance, fire and civil protection services
- production, transmission or distribution of gas, water or electricity
- collection of household refuse or the operation of an incineration plant
- any industrial activity where work cannot be interrupted for technical reasons
- research and development
- carriage of passengers on regular urban transport services
- persons working on board trains or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic
The examples listed above are merely examples. The exemption does not automatically apply to these activities. The crucial issue is whether the activity is one in which the employee is directly involved in the continuity of production.
Employees with no fixed place of work
In the recent Tyco case (C266/14), the Court of Justice of the European Union (CJEU) held that where an employee does not have a fixed or habitual place of work, the employee’s travel time to a customer’s place of business should be included in the calculation of 'working time' under the Working Time Directive. It is important to note that this decision only affects employees who do not have a fixed place of work and are required to travel each day between their home and customers’ premises.
While Irish courts are obliged to interpret Irish law in line with EU legislation it is not yet clear how the Tyco decision will be interpreted by the Irish judiciary. In spite of ambiguity, it is likely that employers will be required to pay employees for the time spent travelling to and from work and that this time will count towards the 48 hour maximum working week.
Employers must keep records to confirm whether the provisions of the Act are being complied with in relation to all employees. Records must be retained for three years and be available for inspection. Records must be kept in a form prescribed by the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001. An employer who fails to keep records is guilty of an offence and may be liable on conviction to a fine of up to €1,900 for each employee.