Working Time Issues

Zero Hour Contracts

A zero-hour contract is one where the employee is expected to be available for a certain number of hours or to be available when required, where there is no guarantee that there will be any paid work available. The contracts require that the employee is to be available when required by the employer or that he is to be available for a fixed period with or without a further period, as and when the employer requires.

Where the employee has not been required to work at all, the Organisation of Working Time Act requires that he be paid at least 25% of the hours for which he has contracted to be available or 15 hours’ pay, whichever is less. Where the employee has been required to work less than 25% of the contracted hours, he is entitled to be to pay for 25% of the hours for that week, 15 hours’ pay or the time worked, whichever is greater.

The employee must be available. He must not be unavailable through illness.  The provision does not apply to periods of layoff and short-time work or where circumstances have arisen outside of the employer’s control due to any incident or an emergency.


Zero Hour Payment I

Where the employee has not been required to work for at least a quarter of his contract hours, where he is to be available when required, then he or she is entitled to be paid for up to either 25 percent of working hours that he was required to be available or for 15 hours, whichever is less.

More precisely, the entitlement to payment applies if the employer does not require an employee to work for the employer in a week

  • at least 25 per cent of the contract hours,
  • where work of the type for which the employee is required to make himself available to do has been done for the employer in that week, at least 25 percent of the hours for which such work has been done in that week,

Zero Hour Payment II

Where he has not been required to work the requisite number of hours for the employer, he is entitled in that week, to be paid by the employer the pay he would have received if he had worked for the employer in that week whichever of the following is less

  • the percentage of hours referred to above or
  • 15 hours in a case where the employee has been required to work for the employer in that week less than the percentage of hours referred to above (and that percentage of hours is less than 15 hours)

His pay for that week is calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to above.


Retail Sector Rests

Regulations provide that retail sector employees whose hours of work include 11.30 to 2.30 in the afternoon, shall be allowed a break of one hour after six hours’ work.  The break must commence between 11.30 and 2.30.

The regulation cover barbers, hairdressers, places hiring goods, pawnbrokers, premises where goods are received directly from customers for cleaning, repairing, altering or laundering. It includes wholesale shops, warehouses, the conduct of a retail trade or a wholesale dealer or merchant for the purpose of a business carried on by him or her as a wholesale shop.  It does not apply to a hotel, the preparation of food or catering and any business conducted pursuant to an intoxicating liquor licence.


Retail Sector Sundays I

A code of practice on working in the retail trade sets out best practice in relation to Sunday working.  It contemplates consultation, discussion and agreement between employers and employees and their representatives in relation to the terms of Sunday working.  It does not have the force of law but is admissible in proceedings under the legislation. Regard may be had to it in those proceedings.

There are guidelines for compensatory arrangements for Sunday working. The particular arrangements should be negotiated.  They should be a premium for Sunday work.  Existing employees should have the option to volunteer to opt into working patterns, which include Sundays on a rota basis and form part of a regular working week (i.e. being required to work no more than 5 days out of 7). Newly recruited employees may be contracted to work Sundays as part of a regularly rostered working pattern.


Retail Sector Sundays II

Employees who have a minimum of two years’ service on a Sunday working contract should have the opportunity to seek to opt out of Sunday working, for urgent family or personal reasons, giving adequate notice to the employer.

All employees should have the opportunity of volunteering to work on the peak Sunday trading days prior to Christmas, in addition to their normal working week. In these circumstances, the length of service will not be the overriding criteria for selection for Sunday working.

Meal breaks on Sunday should be standardised in the same way as other days of the week.  The Work Relations Commission agrees to provide assistance to employees and employers and their representatives including non-trade unionised employees in negotiating collective agreements on Sunday working.


Night Workers

Night workers are persons who normally work at least 3 hours of daily working time or 50 percent of their total annual working time, between midnight and 7 am on the following day.  An employer may not permit a night worker to work more than an average of 8-hours in each 24-hour period, calculated over a reference period..

This reference period is made up of consecutive days up to 2 months, or such longer amount as may be agreed in a collective agreement. The reference period may not include weekly rest periods, annual leave, absence due to maternity, parental leave, carer’s leave, adoptive leave, force majeure leave et cetera.

Employees have duties under health, safety and welfare legislation to night workers.  They must assess the health and safety implications of working at night.  If there is a threat to health, then the employee must be reassigned to day work where possible.

Night workers are deemed special night workers, where a health and safety assessment indicates that the work involves special hazards, heavy physical or mental strain.  In this case, the employee is prohibited from working more than 8 hours in a 24-hour period.


Notification of Working Hours

Where working hours are not specified in a contract of employment, registered employment agreement, employment regulation order or collective agreement, the employer must notify the employee on a working day at least 24 hours before the first day in each week that the employee is required to work, of the normal start and finish times for work on any day of that week.

If the employee is required to work additional hours, the employee must be given 24 hours’ notice before the first day of the week, as to which additional hours are to be worked and of the details of the start and finishing times, on each day of the week.  The notification does not limit the ability of the employer to require the employee to start or finish work at times other than those specified, where the requirement could not have been foreseen and where the employer is justified in changing the times to be worked.


Records and Enforcement

Employers must keep records of hours worked and holidays taken by employees in order to vouch for compliance with legislation. They must be kept at the place of work and must be maintained for three years. Where records are not kept, the burden falls on the employer to prove compliance with the working time requirements.

The working time legislation is enforced by claims for compensation by employees and by prosecution/ administrative action . An employer or his representative may complain to the WRC in respect of breaches of the legislation.

The claim must be made within 6 months of the contravention.  Exceptionally, this may be extended for up to 12 months where there is a justifiable reason not to have taken the claim within 6 months.The WRC may declare that complaint is well founded or not well-founded.  It may direct the employer to comply with the relevant legislation and to pay such compensation as is just and equitable, up to two years’ remuneration

Where a claim is made of non-compliance with Working Time legislation, which specifies the alleged failures concerned, the onus is on the employer to prove compliance.

Penalisation for making a complaint may itself be the subject of a complaint and an award of compensation.


Criminal Consequences of Breach

Non-compliance with the legislation is an offence.  It is an offence to fail to keep records.  Records may be kept through a clocking-in mechanism or in some other easily comprehensible form. It must maintain a record of days and hours worked by employees

Breach of the legislation is subject on prosecution and summary conviction, to a fine up to €1,900.  It is a defence that employee was employed by two or more employers and thereby exceeded permissible working times if it neither knew not could not reasonably have known about the work done for the other employer.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.10

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009

Legislation

Organisation of Working Time Act 1997

Organisation of Working Time Act (Commencement) Order 1997, S.I. No. 392 of 1997

Organisation of Working Time (Determination of Pay For  Holidays) Regulations 1997, S.I. No. 475 of 1997

Organisation of Working Time (General Exemptions) Regulations 1998, S.I. No. 21 of 1998

Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998, S.I. No. 44 of 1998

Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998, S.I. No. 52 of 1998

Organisation of Working Time (Breaks At Work For Shop  Employees) Regulations 1998, S.I. No. 57 of 199

Organisation of Working Time (Code of Practice on Sunday Working in The Retail Trade and Related Matters) (Declaration) Order 1998, S.I. No. 444 of 1998

Organisation of Working Time (Public Holiday) Regulations 1999, S.I. No. 10 of 19991286

Organisation of Working Time (National Day of Mourning) Regulations 2001, S.I. No. 419 of 20011287

Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, S.I. No. 473 of 2001

Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004, S.I. No. 817 of 2004

Organisation of Working Time (Inclusion of Offshore Work) Regulations 2004, S.I. No. 819 of 2004

Organisation of Working Time (Exemption of Civil Protection Services) (Amendment) Regulations 2009, S.I. No. 478 of 2009

Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015, S.I. No. 342 of 2015

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law   Daly & Doherty           2010

Employment Law Contracts (Book & CD-ROM)       Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

Shorter Guides

Employment Law Nutshell      Donovan, D     2016

Employees: Know Your Rights           Eardly  2008

Essentials of Irish Labour Law           Faulkner          2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016