A major consequence of the COVID-19 pandemic has been a transition for many businesses to a remote working model. While this development has undoubtedly highlighted many of the benefits of working from home, one of the main challenges faced by employers in this environment is that of working time, and in particular the blurring of lines between employees' professional and personal lives. With many seeing light at the end of the tunnel in 2021, it is still important for employers to be familiar with all facets of working time rules, especially where they expect their workers to continue to work remotely in some capacity.

We set out below some key questions and guidance to help employers address a wide spectrum of issues concerning working time.

What exactly is "working time"?

The definition of "working time" is set out in the Organisation of Working Time Act, 1997 (the 1997 Act) as: "any time that the employee is (a) at his or her place of work or at his or her employer's disposal, and (b) carrying on or performing the activities or duties of his or her work". It is important to note that this definition does cross-refer to an employee's contractual hours of work. Therefore, where an employee works outside of their working hours, this is still counted as working time.

The concept of "working time" also raises the tricky question of whether periods where an employee is on-call (i.e. available to work upon request) constitutes "working time". Irish law does not recognise "on-call" as its own distinct concept. Instead, each scenario is to be assessed as either working time or not depending on the facts. EU case law has determined that where an employee is required to be physically present at the workplace while on call (e.g. a hospital nurse), the time spent on-call is considered "working time" regardless of whether the employee is allowed to rest during this time. However, where an employee being on-call means that the employee only needs to be reachable so as to attend work if required, the time spent on-call will not be considered "working time".

What are the rules as regards rest breaks and rest periods?

The 1997 Act prescribes a number of mandatory breaks which must be afforded to employees. Employees are entitled to take a 15-minute rest break after working four and a half hours. After six hours of work, an employee is entitled to a 30-minute break (which may include the 15-minute break mentioned previously). Employers enjoy a degree of control as to when these breaks may be taken by employees, but it is important to note that employers cannot allocate rest breaks at the end of the working day.

In addition to rest breaks throughout the working day, the 1997 Act provides for daily and weekly rest periods. Employees are entitled to 11 consecutive hours of rest in any 24-hour period, and 24 consecutive hours of rest in any seven-day period. Compliance with the latter of these rest break requirements is assessed on a fortnightly basis. This means that if an employee is (for whatever reason) not provided with a 24-hour rest period in a week, their employer may give the employee a second 24-hour period of rest in the subsequent week to correct and balance the fortnightly average.

Due to the diminished ability of employers to monitor employees who work from home, it is naturally more difficult for employers to know whether their employees are taking rest breaks. However, employers would be well-advised to make efforts to ensure that all rest breaks are still facilitated at home. It is therefore strongly recommended that employers consistently remind employees of the importance of taking rest breaks, and take all reasonable measures to ensure that rest breaks are actually being taken.

What are some of the key rules around annual leave?

With the beginning of a new year often comes the beginning of a new annual leave year for employers. The minimum amount of annual leave to which employees are entitled depends on that employee's working hours. In order to calculate the minimum entitlement, the 1997 Act provides for three formulae, the most beneficial of which for any particular employee will be applicable. These formulae are as follows:

1. Four working weeks of annual leave where the employee works 1,365 hours or more in a leave year;
   
   
2. One third of a working week of annual leave for each calendar month in which the employee works 117 hours or more; or
   
   
3. Eight percent of the hours worked in a leave year by the employee.

A common question which arose in the context of the COVID-19 pandemic is whether an employer may dictate when an employee may take their annual leave. While the 1997 Act provides that an employer may decide when annual leave is taken, the employer must (i) give at least one month's notice of the date on which the employer wishes the annual leave to be taken, and (ii) consult with the employee to ensure that the annual leave allows for the employee to have meaningful rest and to balance family commitments.

It is also important to remember that there are rules relating to the interaction between annual leave absences due to illness. First, an employee cannot simultaneously be on certified sick leave and annual leave. This means that where an employee falls ill during a period of annual leave, the days on which they were certified as ill are not counted as annual leave and must be afforded back to the employee. This also means that employees who are certified as sick cannot take annual leave as a way of taking paid leave (i.e. as an alternative to unpaid sick leave). The second major rule in this regard is that while an employee is absent due to illness, they continue to accrue annual leave. Additionally, while carryover of annual leave into a new annual leave year is generally not a statutory right, where an employee was unable to use up their annual leave in a leave year (or in the first six months after the leave year) due to being certified as sick, there is a 15-month carryover allowed for that employee.

What are an employer's basic obligations as regards recording working time of their staff?

Although the requirement for employers to record employees' working time has been a feature of the 1997 Act since its enactment, it has only become a headline issue for many employers relatively recently. The 1997 Act requires an employer to keep detailed records of the employer's compliance with the 1997 Act at the employer's place of business for a period for three years. This ranges from records of the daily and weekly hours worked by employees to rest breaks to annual leave.

While some employers may find such record-keeping to be challenging from an operations perspective, it is worth remembering that failure to comply with this requirement constitutes a criminal offence. Therefore, all non-compliant employers should explore solutions (technical or otherwise) to bring their organisations in line with the 1997 Act. This may include systems such as clock-in/out or requiring employees to submit daily or weekly timesheets.

Is there a right to disconnect under Irish law?

The right to disconnect is a topic which has been brought to the forefront in light of the Covid-19 pandemic but has been on the minds of Irish and EU legislatures for some time. At the EU level, the European Parliament recently published a new directive, which obliges Member States to enshrine the right to disconnect in national law. The Directive contains a number of minimum conditions which must be met including "practical arrangements for switching off digital tools for work purposes", conducting psychological risk assessments of workers, and anti-penalisation measures.

Back at home, the Irish government most recently published its national strategy for remote working entitled "Making Remote Work". The strategy indicates the government's agenda as regards introducing new legislation to address the rights of remote working employees. This includes legislating for a right to disconnect, which will allow employees to disengage with their work at the conclusion of the working day. As with many similar initiatives, the devil will be in the detail, and only time will tell what the right to disconnect may look like, but it is expected that the Workplace Relations Commission will publish a code of practice for employers. As with other codes of practice, non-compliance will likely not be a criminal offence or give rise to a claim in and of itself, but instead will serve as a benchmark of best practice against which employers may be judged in the context of a Workplace Relations Commission claim.

However, it is important to recognise that although there is currently no single express right to disconnect as of yet, such a right arguably already exists under existing legislation. While it is unlikely that the 1997 Act was designed to apply to today's technologically advanced workforce, the rules are nevertheless still applicable and largely adequate. For example, as outlined above, the 1997 Act prescribes rules in relation to minimum daily and weekly rest breaks and rest periods. However, it is expected that future legislation will seek to improve on these rules, and most importantly, promote awareness of the right to disconnect to all remote workers.

Further Reading on Working Time

Organisation of Working Time - Your Questions Answered