With the festive season now in full swing, many employers, particularly in the retail and hospitality industry will have seasonal workers in to help with the additional workload that this time of year brings in. On the other hand, there are employers who are embracing a hybrid working model with employees split between the workplace and working remotely.  Whether employees are working for a few months over Christmas, or are full-time employees working remotely, it is still important for employers to be aware of their obligations with respect to rest breaks for employees.

What are the rules on rest breaks for employees?

The rules for rest periods for employees can be found in the Organisation of Working Time Act 1997 (the “Act”).  The rest breaks are as follows:

• A 15 minute break where an employee has worked for more than 4 ½ hours;
• A 30 minute break where an employee has worked for more than 6 hours – which can include the first break;
• A daily rest period of 11 consecutive hours per 24 hour period; and
• A weekly rest period of 24 consecutive hours per seven days, following a daily rest period.

It is important to note that there is no statutory requirement to pay employees for their breaks.

Are there special rules for retail staff?

There is an additional rule for retail staff outlined in the Organisation of Working Time (Breaks at Work For Shop Employees) Regulations 1998 (the “Regulations”).  It says that if you work in a shop and work for more than 6 hours, including the hours between 11.30am and 2.30pm then the employee is entitled to a break of one hour during that timeframe. This cannot be taken at the end of the employee’s working day.

The Regulations apply to those in shops, hairdressers, barbers, etc., but generally not hospitality.

What about employees who are working from home?

There is no doubt that while the introduction of working from home has been largely welcomed by employees, it did have a negative impact on some who felt that it was more difficult to switch off and were not taking breaks as required.

It is worth remembering that employers have a legal responsibility to keep records of employees’ hours worked under the Act and must ensure that their employees receive specified breaks within the day as well as their daily and weekly rest.  This is something which can prove to be more challenging where employees are working remotely, but it will be important for employers to consider the working hours that employees are doing and check in with them to remind them about taking breaks.

Further, with an increase in people working outside of the more traditional working hours, this can result in certain employees feeling like they must reply to all emails regardless of the time.  This has been dealt with practically by employees having a note on their emails saying that they are not expecting a response outside of working hours.  These types of issues are also specifically considered in the Code of Practice on the Right to Disconnect.

Nonetheless, employees also have a responsibility to co-operate with any appropriate mechanism which the employer puts in place to record of working time.

What is the maximum amount of hours an employee can work in a week?

The Act states that employers cannot permit employees to work more than a maximum of 48 hours per week on average except in very limited circumstances.

How should an employer calculate this?

The working week average should be calculated over a 4, 6 or 12 month period depending on the circumstances.  Generally speaking, employers should calculate the average using the 4 month period.  For employees whose work is seasonal with a surge in activity, which might the case for certain workers over the Christmas period, the 6 month period should be used to calculate the average.  Finally, for employees who are in a collective agreement with their employer which has been approved by the Labour Court, the 12 month average should be used instead.