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Employers must keep detailed records of their employees’ working time along with records of leave, rest periods and breaks. Employers must keep these records for a period of three years and could be fined up to €1,900 for not doing so. But some employers may not fully understand what is meant by Working Time or their obligations. In this week’s article, Derek McKay, Managing Director of Adare Human Resource Management answers some regularly asked questions, specifically around breaks and holidays.
What is Working Time?
Working time is defined as any time that an employee is:
- At his/ her place of work or at their employer’s disposal, and,
- Is carrying out or performing the activities or duties of his/ her work.
What are the maximum weekly working hours?
The Organisation of Working Time Act sets out that an Employee shall not be permitted by their Employer to work, in each period of 7 days, more than an average of 48 hours calculated over a period of 4 months, 6 months or 12 month reference period in different circumstances.
What is meant by daily rest period and what rest breaks should employees get?
According to the Organisation of Working Time Act 1997 – 2015, an employee is entitled to a daily rest period of no less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her Employer. This means that an employee cannot return to work, following a day of work, until at least 11 hours have elapsed. These 11 hours must be consecutive.
Where an employee is required to be ‘on call’, this is not considered to be working time unless the Employee is ‘called’ and required to go to work.
An employee working less than 4.5 hours is not entitled to a break, unless agreed as a term of the contract of employment.
An employee working 4.5 hours or more, but less than 6 hours, must be provided with a minimum unpaid break period of 15 minutes during their working day.
An employee working 6 hours or greater must be provided with a 30 minute unpaid break during their working day. Where an employee is entitled to this 30 minute break, he/she does not have to be provided with the 15 minute break earned after 4.5 hours work.
Employers should note that a break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirements of the Organisation of Working Time Act, 1997. Therefore, an employee cannot work through their breaks in order to leave earlier at the end of the working day.
There is no obligation to pay an employee in respect of these break periods unless otherwise agreed in the contract of employment.
How many holidays is an employee entitled to and how is their entitlement calculated?
Employees are entitled to a minimum of 4 working weeks during the year, plus the nine Public Holidays. An employee’s entitlement to holidays begins on the day they start working and is usually worked out on a monthly basis. In some instances, an employee may be entitled to more than the statutory annual leave entitlement, this is known as ‘Non-Statutory’ leave. All time worked (including overtime) qualifies for holiday leave.
Time spent on Annual Leave, Maternity Leave, Paternity Leave, Parental Leave, Force Majeure Leave, Adoptive Leave, or the first 13 weeks of Carer’s Leave should also be included in the qualifying time for annual leave and public holidays.
Under the Organisation of Working Time Act 1997, the basic minimum holiday entitlement is 4 working weeks in a leave year. Based on actual time worked (see inclusions above), an employee’s holiday entitlement can be calculated by any of the three methods below:
- 4 working weeks in a leave year in which an Employee has worked at least 1,365 hours (unless it is a year in which the Employee changed employment);
- 1/3 of a working week per calendar month in which the Employee worked at least 117 hours
- 8% of the actual hours worked in the leave year – but subject to a maximum of 4 working weeks.
Unionised employments generally have more favourable holiday entitlements for their members as unions often negotiate for additional holidays in excess of the minimum statutory entitlement.
Can an employee take holidays when they want?
Time off for holidays is usually the subject of discussions between employees and employer or manager. An employer can determine how the leave is taken due to work requirements. However, they must also consider an individual’s circumstances, such as the need to reconcile work and family responsibilities and the need for rest and recreation.
Can an employee defer their annual leave?
In general, an employee’s annual leave must be taken within the leave year to which it relates. However, with an employer’s consent it can be taken within 6 months of the next leave year.
It is an employer’s responsibility to ensure workers take their full statutory entitlement in the appropriate leave period. Employees may also, with their employer’s consent, carry over to the next leave year, holidays in excess of the statutory minimum.
Can an employer pay an employee instead of taking holidays?
No, under the Organisation of Working Time Act 1997 this is not allowed. It is illegal to pay an allowance instead of an Employee’s statutory entitlement to holidays. However, where an employee is leaving the employment, the Employer may pay for the holidays that have accrued by the employee but not already taken.
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