The Organisation of Working Time Act 1997 (the 1997 Act) is the main piece of legislation that governs the working hours of employees. It sets out employees' entitlements including the maximum average number of hours an employee can work, minimum break and rest periods that employees are entitled to. This is in addition to an entitlement to a Sunday premium for Sunday working (in certain situations).

It is a technical and (some could say outdated) piece of law that employers and legal practitioners alike can find difficult to navigate. This is due to the fact that it does not reflect the vast changes that have occurred in the "traditional workplace" since the legislation was enacted in 1997.

It remains the law in Ireland on working time and for that reason, we set out below responses to some of the top queries we often receive on working time.

What is the maximum number of hours an employee can work per week?

Subject to certain exceptions, the 1997 Act provides that the maximum number of hours that an employee should work is 48 hours. The 48 hours are calculated as an average number of hours worked per week, over a four-month reference period.

Can an employee opt-out of the maximum number of working hours?

No. Unlike the UK, employees in Ireland cannot opt-out of the maximum working week.

Can a senior employee opt-out of the 1997 Act?

There is no provision for "opting-out" of the 1997 Act. Where a senior employee determines their own working hours, then Part II of the 1997 Act will not apply to them. Part II deals with the following:

• rest periods
• breaks
• Sunday work
• weekly working hours
• night-time working
• the provision of information in relation to working time
• zero hours contracts

Are employees entitled to extra pay for working Sundays?

If the possibility of working on a Sunday was taken into account when determining an employee's rate of pay, then no, employees are not entitled to extra pay for working Sundays.

If Sunday work was not taken into account when determining an employee's rate of pay, then yes, employees who are required to work on Sundays are entitled to be compensated either in the form of an allowance, an increased rate of pay, paid time off, or a combination of these.

Does an employer have to provide employees with payslips?

Yes, employers must provide (either in hard or soft copy) a written payslip to all employees with every payment of wages. Every payslip must clearly specify the gross amount of wages payable to the employee and the nature and amount of any deductions. Employers must ensure that employees' payslips are treated confidentially.

What rest periods and breaks are employees entitled to?

Employees are entitled to breaks during their working hours as follows:

• 11 consecutive hours per 24 hour period (the Daily Rest Period);
• 24 consecutive hours per seven days, following a Daily Rest Period;
• A 15-minute break where more than 4½ hours have been worked; and
• A 30-minute break where more than 6 hours have been worked (which may include the previously mentioned 15 minute break).

Notwithstanding the above, many employers allow employees take one hour / one and a half hours for lunch, which is unpaid.

Employers are not obliged to pay employees during break times, unless the employer has agreed to pay for the 15 minute break pursuant to an employment contract, ERO,[1] REA[2], SEO[3], or collective agreement with a trade union.

What constitutes "night work"? And how many hours can a night worker work? 

Night work is any work carried out between midnight and 7am the following day (Night Time). A night worker is an employee who normally works at least three hours at Night Time for at least 50% or more of the total number of hours worked by him or her during that year.

Generally, night workers must not work more than an average of eight hours per night or 48 hours per week averaged over a two month period.

If the night work involves special hazards or heavy physical/mental strain, there is an absolute limit of eight working hours in any 24-hour period.

Are employers required to record employees' working hours?

Yes, the 1997 Act imposes an obligation on employers to keep detailed records of their employees' working hours. Employers are required to keep these records for three years from the date they are made. Failure to do so is a criminal offence.

This obligation was strengthened in May 2019 when the Court of Justice of the European Union delivered a judgment confirming a duty on employers to ensure that they have an ‘objective, reliable and accessible system’ in place to record employees' working hours. They must also ensure that employees are receiving their minimum daily and weekly rest periods and that there are limitations on employees' working hours.

How should employers comply with this obligation?

The legislation[4] does not detail precisely how such records should be kept, but it does confirm that the records should be straightforward to ensure that Inspectors can understand them and contain the following information:

• Personal details - the name and address of each employee, their PPS number, a brief statement of their duties of employment (e.g. their job title or classification of role as used by the employer), and a copy of their contract;
• Working hours – the days and total hours worked in each week;
• Annual leave & public holiday – detail on any days/hours of annual leave or public holiday taken by the employee that week (and the payment made to them in respect of same, and if the employee worked the public holiday information on the additional payment made to the employee for working that day).

The legislation also provides that where an employer does not operate a clock-in system, then it should detail the days and hours worked by employees in the OWT1 Form or in a form that is substantially similar.

Is there any exemption available to avoid having to record employees' working hours?

No.

Just to note, where an employer operates a "clock-in" system, there is no requirement to record employees' working hours in a separate form.  Another advantage of operating a clock-in system is that employers are then exempt from having to record rest breaks if (i) employees are notified of their rest break entitlements; and (ii) the employer puts in place a process so that employees can notify the employer if they are unable to take rest breaks; and (iii) the employer keeps records of notifying employees of (i) and (ii) together with any notifications made to it by employees.

However, please note, different working time obligations exist for "mobile workers." Mobile workers have a statutory definition but generally refer to drivers and crews of commercial vehicles or vehicles that transport more than nine people. Please contact A&L Goodbody directly if you require specific advice in relation to "mobile workers."

What are the consequences of not complying with the requirement to keep records?

Regulatory Fine - an employer who fails to keep records shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,500. Where an employer has not retained records for a number of employees, there is a risk that an employer could be charged with multiple offences resulting in a fine in respect of each employee.

Compensation Order - the other issue for employers is that when faced with a claim involving an alleged breach of the 1997 Act, the evidential burden of proof in demonstrating compliance with the Act rests with the employer - it is up to the employer to show that they comply with the 1997 Act.

Where an employer cannot produce records showing full compliance to defend a claim, for example demonstrating what hours the employee worked each day when in employment etc., then it will not be able to rebut the case and an award of compensation of up to two years' remuneration may be ordered. Interestingly, due to how the 1997 Act is drafted, an Adjudication Officer could not order that the employer comply with the requirement to keep records.

What should employers be doing?

Employers need to audit their practices to determine whether or not they are in compliance with the 1997 Act. They should then consider whether they wish to introduce a "clock-in" system, or require employees to fill out the OWT1 Form, or finally, seek legal advice to ascertain the risk of non-compliance.