This week we asked Maria Pittock, A&L Goodbody (ALG) Associate, to help employers navigate their obligations in relation to Sunday working. Maria also identifies common pitfalls for employers when ensuring their statutory obligation to compensate for Sunday work is discharged.

1. Is an employer required to pay employees who work on a Sunday more than those who don't?
2. Is "Sunday work" addressed in legislation in Ireland?
3. Should Sunday work and its compensation be expressly provided for in a contract of employment?
4. Are there any consequences for employers if compensation for Sunday work is not expressly provided for in the contract of employment?
5. Is an employer compliant with section 14 if they pay employees a premium for working shifts? 
6. What relief does an employee have if their employer is in breach of section 14?
7. What should employers do to be section 14 compliant?

Q. Is an employer required to pay employees who work on a Sunday more than those who don't?

Not necessarily. An employer has to pay an employee what has become known as the "Sunday premium" only in circumstances where that employee is required to work to work on a Sunday. Such compensation for Sunday work should:

• have already been taken into account when deciding their rate of pay
• or, if not, take one or more of the following forms: an allowance, an increased rate of pay or time off

Q. Is "Sunday work" addressed in legislation in Ireland?

Yes. Sunday work is dealt with in section 14 of the Organisation of Working Time Act 1997 (the Act).

What does section 14 say?

Section 14 provides that an employee who is required to work on a Sunday (and the fact of their having to work on that day has not otherwise been taken into account of in the determination of their pay) shall be compensated by the following:

• payment of an allowance that is reasonable in the circumstances
• increasing the rate of pay by such an amount as is reasonable in the circumstances
• granting the employee such time off as is reasonable in the circumstances
• or, a combination of the above

Q. Should Sunday work and its compensation be expressly provided for in a contract of employment?

Yes. Under the Terms of Employment (Information) Acts 1994 to 2014, employers are required to set out any terms or conditions relating to hours of work (including overtime). Following the recent introduction of the Employment Miscellaneous Provisions Act 2018, employers are also required to set out the number of hours which the employer reasonably expects the employee to work (i) per in a normal working day and (ii) per normal working week.

Where an employee is required to work on a Sunday then this should be clearly set out in the contract. Detailing the requirement of Sunday work in this manner is the easiest way for an employer to show that it has taken account of Sunday work. This allows for the compensation to be allocated for it at the start of the employment relationship.

Q. Are there any consequences for employers if compensation for Sunday work is not expressly provided for in the contract of employment?

It depends. In Viking Security Limited v Thomas Valent (2014) the Labour Court stated that it is for the employer to show that, at the time of determining the employee's rate of pay it contained an element intended to specifically compensate the employee for the requirement to work on Sunday. The Court found that it is not enough for an employer to simply say that because the rate exceeds the national minimum wage it automatically compensates the employee for Sunday working.

It was also held in Duesbury Limited v Frost (2010) that "some element of the employee's pay must be specifically referable to the obligation to work on Sunday". The Labour Court confirmed that it is for the employer to show that when the employee's rate of pay was established, a specific element of it was intended to be in consideration of the employee's obligation to work on Sunday.

If the contract fails to set out the element of compensation for Sunday work, this will not be fatal for the employer, provided it can show that it was taken into account when the contract of employment was being entered into. In the absence of such express reference in the contract, the employer must be able to demonstrate that the employees who work on a Sunday are paid more than those who don't. They must also show the specific amount attributable to their Sunday work.

In Ballinalard Transport Limited v Agaskov DWT1359, a reference to working a seven day week was not sufficient to show Sunday work was taken into account in determining the employee's pay. It would follow that simply stating the employee's working week includes or may include Sunday work is not sufficient.

Q. Is an employer compliant with section 14 if they pay employees a premium for working shifts?

No. Unless there is an uplift in the shift premium for those who are required to work a Sunday shift, employers will fall foul of section 14.  For example, take two groups of employees: Group A works shifts on Saturdays and Group B works shifts on Sundays. If Group A and B are paid the same shift premium then the employer is not meeting its obligations under section 14 for those in Group B. Group B need to be compensated in accordance with section 14 over and above Group A.

Q. What relief does an employee have if their employer is in breach of section 14?

An employee could take a claim to the Workplace Relations Commission for breach of the Act. An employee has six months from the date of each breach to take a claim. This may be extended to twelve months if they can prove exceptional circumstances existed which prevented a claim being taken within six months.

An adjudication officer can:

• declare that the complaint was or was not well founded
• require the Company to comply with section 14
• and/or require the Company to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding two years’ remuneration in respect of the employee’s employment

Q. What should employers do to be section 14 compliant?

Identify the employees who are required to work on a Sunday and whether or not they are being compensated in accordance with section 14 of the Act. The look back period is 12 months as that is the maximum timeframe an employee can bring a statutory claim.

In terms of deciding whether or not the allowance or rate of pay is reasonable, it is clear from the case law that the compensation for working on a Sunday should be the going industry rate. The Labour Court will look at collective agreements in force for comparable workers. The Labour Court has often held that double time, time and a half or a 25% uplift in an hourly rate of pay was reasonable compensation. That said, each case is fact specific and industry specific.

If an exposure is identified, the employer's insurers should be notified and legal advice sought on how best to rectify the situation going forward (and address past breaches).

Contracts of employment should be reviewed to see whether:

• the requirement to work Sundays was already expressly provided for
• the associated compensation been expressly set out or said to be included in the rate of pay

In the latter case, the next question is whether that amount is discernible from the negotiations surrounding the conclusion of the employment contract, or other employment documentation, e.g. the employee's payslip. Where contracts of employment do not set out the above, advice should be sought on revising contracts for existing employees and for new hires going forward.