We have employees who are required to work on some Sundays in the month as part of their contractual working hours. The contract of employment sets out their overall salary amount but does not specify any portion of the salary which is attributable to Sunday working. One of our employees has queried this and has suggested that they are entitled to additional compensation for having to work on Sundays. We are not in the retail sector, which I understand has a specific Code of Practice around Sunday working. In the absence of a Code of Practice for our sector, how do I handle it?

As an employer there is a potential difficulty here from a legal perspective, as the contract of employment does not meet the minimum requirements to prove that you have taken the Sunday working into account. The following is the legal position.

The Sunday work obligation ⚓︎

Section 14(1) of the Organisation of Working Time Act 1997 (the “1997 Act”) provides that where an employee is required to work on a Sunday, and their having to work on that day is not otherwise taken into account in determining their pay, they shall be compensated by the following means and to such an extent as is reasonable having regard to all of the circumstances:

• an allowance;
• an increase in the rate of pay;
• paid time off in lieu; or
• a combination of two or more of the above.

A 2019 High Court appeal considered the meaning of the highlighted words above.  The employer’s appeal was grounded on the Labour Court’s finding that the employer had to give evidence as to what part of the employees’ pay specifically related to their Sunday work. The employer argued their contracts of employment discharged its obligation in respect of Sunday work.

The employer did at some point argue that the hourly rate was effectively the minimum wage (then €8.65) plus an increase to €9.53 in discharge of its Sunday work obligation, however this argument was only made through legal submission rather than evidence.

Both employees involved in this 2019 case worked two out of three Sundays. Both employees’ contracts of employment specified an hourly rate of pay in excess of the minimum wage. Both contracts claimed that hourly rate “includes your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three)”.

However, neither contract explained how it included the Sunday premium. Simply put, it did not say that €X of the employees’ hourly rate was specifically referable to their obligation to work Sundays. Neither did the employer provide any evidence to the Rights Commissioner or Labour Court as to how the hourly rate took account of Sunday work.

The only evidence presented to either forum were the two contracts of employment.

The High Court ⚓︎

The High Court allowed the employer’s appeal, reversing the Labour Court’s decision and dismissing the employees’ Sunday work claims.

The High Court found the Labour Court erred in two critical respects:

1. The Labour Court was incorrect in finding there was no evidence before it as this finding ignored the express statement in the employees’ contracts of employment. The High Court emphasised the wording in question was “in plain English and could not be more clear”. Further, it was “not buried in small print somewhere in the middle of the contract, but appears on the front page”. The High Court said that, in the face of that “clear and unambiguous language”, the employees appeared not to have given any rebuttal evidence; and
2. The Labour Court misinterpreted the 1997 Act by creating an employer duty “to explain by way of a breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday.”

Application of High Court Decision ⚓︎

There are two important issues arising from this judgment:

1. Burden of Proof

It is not necessarily sufficient for an employer to demonstrate that a contract of employment has a statement that the rate of pay takes account of the requirement to work on Sundays. However, such a contractual provision now shifts the burden of proof onto the employee who is alleging they have not received their Sunday work entitlement.

The employee must now provide “credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer”.

To demonstrate what such credible evidence might be, the High Court gave the example of events overtaking a contract of employment such as where the minimum wage increased and an employee’s hourly rate did not. In such circumstances, the High Court held it would be “difficult to see how the rate of pay could still be said to reflect the requirement to work on a Sunday.”

In short, an employee, faced with written evidence of their agreement that their hourly rate of pay takes into account an obligation to work on Sundays, must proactively provide evidence to counter that. By failing to do so here, the employees left the contract unchallenged and the employer was under no obligation to go into evidence on the issue.

2. The Terms of Employment (Information) Act 1994 (the “1994 Act”)

The High Court noted that “it is clear that, in providing simply that the [employees] are to be paid a specific rate per hour worked, the [employer] has met its statutory obligation to the respondents under s. 3(1)(g) of the Act of 1994.”  The High Court accordingly rejected the employees’ contention that Section 3(1)(g) of the 1994 Act requires an employer to identify in their contracts of employment precisely what element of pay is attributable to the obligation to work on Sundays.

Conclusion ⚓︎

If there is no evidence in your contract of employment to cover the fact that the employee’s overall pay takes into account the Sunday premium, as there was in the case referred to above, then the burden of proof will shift to you as the employer to prove that the rate of pay takes into account the Sunday work.  If you cannot prove that, then you may lose any claim issued by your employee.