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Employee Downtime

The decision of the WRC this month in the case of A Store Manager v A Retail Pet Shop ADJ-00016534 is a timely reminder of the necessity not to interfere with an employee’s rest breaks and is in keeping with a recent legal trend in Ireland and the EU generally in favour of protecting the quality of employee downtime.

The Facts:

The Complainant had been employed as the Store Manager of a retail pet shop from November, 2017 to September, 2018. Following the termination of her employment she lodged a number of claims against the Respondent for alleged breaches of various sections of the Organisation of Working Time Act as well as a claim under the Payment of Wages Act. While a number of the Complainant’s claims failed, she was successful in two of her claims namely a claim in relation to an entitlement to be paid a premium for working on a Sunday and a claim that the Respondent was in breach of Section 13 of the Organisation of Working Time Act 1997 (“the Act”) by interfering with her entitlement to weekly rest breaks.

Section 13 of the Act entitles employees to certain minimum rest periods each week.

The Complainant alleged that the Respondent had breached her rights under Section 13 by requiring her to remain available to take work calls during her weekly rest periods.

The Complainant claimed she had been instructed by her manager that she was required to have her work phone switched on at all times even when she was off duty. She claimed that the said manager constantly called her on her days off about minor issues and that this disrupted her family and personal life regularly and interfered with family activities.

Records were produced (interestingly by the Respondent) of telephone calls between the Complainant and her Manager which occurred outside of her normal contractual daily working hours. These records included several telephone calls and text messages which occurred later than 9pm and one such call had a duration of 10:16 minutes. It seems there was also an email sent by the Complainant’s manager to the Respondent’s Store Managers which read as follows “I expect every Store Manager to have their phone switches on at all times, unless you are on holidays and have handed the phone over to your assistant manager, it is you responsibility to have your phone on you at all times…”

The employer disputed the employee’s contention that she was required to be contactable on her work mobile at all times and submitted that she was instructed to hand over her work mobile to the Assistant Store Manager on her days off and that there was no compulsion on her to take calls when she was not working.

The WRC’s Findings:

The WRC Adjudicator was satisfied that the Complainant was required to be contactable by her Manager while on her weekly rest periods and that she was in effect at her employer’s disposal for that period of time. The WRC Adjudicator found that the requirement that the Complainant be contactable by her manager during the periods she was off duty amounted to an interruption of the Complainant’s weekly rest period and that the Respondent had contravened Section 13 of the Act. The WRC Adjudicator found that the Complainant’s claim in this regard was well founded.

WRC Award:

Interestingly, while it was found that Section 13 of the Act had been breached, the Complainant in this particular case was only awarded €1,500.00 in compensation which would appear to be just over two weeks’ worth of her salary.

While the level of the award in this case may not appear to be particularly concerning to employers at first glance, it is worth pointing out that this claim in respect of Section 13 of the Act was not the sole focus of this case and was just one of 13 claims brought by the Complainant against the Respondent where 11 out of the other 12 claims failed.

That is not to say that there isn’t scope for much higher awards than this depending on the circumstances. It is worth noting that in these kinds of cases the WRC has jurisdiction to award compensation of such amount “as is just and equitable having regard to all the circumstances” up to a maximum of “2 years remuneration”.

Takeaway:

The level of the award notwithstanding, the case is interesting as it represents a further example of the recent trend both in Ireland and the EU generally in favour of prohibiting employers from blurring the lines between working time and rest time.

While there can be some limited exceptions, as a general rule of thumb employees should be allowed to enjoy their statutory rest breaks without being disturbed by their employer. 

https://www.workplacerelations.ie/en/cases/2019/august/%20adj-00016534adj-00016534.html

29th August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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