The leave entitlements and rest periods of employees are governed by the Organisation of Working Time Act,1997 which regulates employees rights in relation to maternity leave, paternity leave,sick pay and holiday entitlements.
How working time is defined is important in this regard for example what is the position for employees who are on call.
This appears from case law to require that the employee be on call in a particular place for it to count as working time;if the employee has to be on standby but can go home for example it has been held by the courts that this is not working time. This is particularly for doctors, for example, but the same principle applies to all workers.
It is worth noting that the Organization of Working Time Act does not apply to the defence forces or gardai or to certain other employees such as those working in an emergency situation, people working at sea and most importantly does not apply to people who can set their own working hours.
An employee is entitled to a rest period of at least 11 hours in every work period of 24 hours. While at work an employee is entitled to a 15 minute break every 4.5 hours and an employee can not be obliged to work for more than 6 hours without a 30 minute break.
In a 7 day period an employee is entitled to a rest period of at least 24 hours and employees who are required to work on Sunday must be compensated by extra pay or paid time off or some other arrangement arrived at with the employee.
An employee can not be expected to work in excess of 48 hours per week; note that this is an average period and the average is calculated over 4-6 months so in any one week it is possible for the employee to work in excess of 48 hours but by law employers should not let employees to average over 48 hours per week in a 4-6 month period.
Employers can not expect or oblige night workers to work over 8 hours in a 24 hour period; a night worker is a worker who works at least 3 hours post midnight as night work is considered to be from midnight to 7 am.
The Organisation of Working Time Act, 1997
The most important piece of legislation dealing with the hours of work, holidays, leave entitlements, days off, breaks, and so on is the Organisation of Working Time Act, 1997. For employers it is important to note that working time and time off/annual leave should be viewed as health and safety issues for employees also.
The definition of “working time” in the Organisation of Working Time Act, 1997 is an important one:
|“working time” means any time that the employee is—|
|(a) at his or her place of work or at his or her employer’s disposal, and|
|(b) carrying on or performing the activities or duties of his or her work,|
|and “work” shall be construed accordingly.|
On call or on standby?
If you are on call or standby the prime determining factor as to whether this is “working time” or not will be the requirement to be at a particular place or not-if a physical presence is required it is considered working time; if not, it is not considered working time, even though you may, like a doctor, be on call.
The Organisation of Working Time Act, 1997 does not apply to Gardai and Defence Forces members and certain sections of the Act do not apply to other groups of employees (for example people involved in the transportation of goods or people, people involved in sea fishing, employees covered by collective agreements, doctors in training etc.)
Minimum Rest Periods
Section 11 of the Act stipulates that an employee is entitled to a“rest period of not less than 11 consecutive hours in each period of 24 hours”.
Section 12 states that an employee is entitled to a rest period of at least 15 minutes after working for 4.5 hours and a break of at least 30 minutes after working for 6 hours. Note: a break at the end of the working day is not acceptable and does not comply with the Act.
Section 13 gives an entitlement to at least 24 consecutive hours of a break in each period of seven days.
Section 15 states that an employee cannot work in excess of an average of 48 hours in a week-the average is taken over a two to twelve month period, depending on the industry and whether you are a night worker or not.
The Organisation of Working Time Act, 1997 also contains provisions covering night workers, circumstances where an employee may not have a regular starting and/or finishing time and zero hours contracts.
Certain sectors of activity are exempted from the rest provisions of the Organisation of Working Time Act 1997, for example some transport activities. These exemptions are normally set out in a statutory instrument so legal advices is recommended to check whether your industry is affected by an exemption.
Disputes are dealt with by a Rights Commissioner in the first instance with appeals to the Employment Appeals tribunal once referred within 6 months of the alleged breach. The Rights Commissioner has a number of options open to him/her including ordering the employer to pay up to two years remuneration as compensation.
We always recommend, regardless of whether you are an employer or employee, that you consult with a legal professional for advice as the consequences of an error in this area can be very costly.
You may also be interested in my other site, EmploymentRightsIreland.com. It has a huge amount of free information about employment law in Ireland.