Rest Breaks at Work*
An interesting issue arose in ADJ-00021332.
The employee in this case contended that every Thursday because he had to attend a meeting he was unable to take his lunch break which would be an entitlement under Section 12 of the Organisation of Working Time Act, 1997.
The employer contended that the employee had given no reason why he could not take his lunch break before or after the meetings. The Adjudication Officer in this case held that the Adjudication Officer was not satisfied that the employee had proved that the employer contravened Section 12 of the Act and therefore the complaint was not well founded.
We would have a difficulty with this reasoning.
The CJEU have recently ruled that there is an obligation on an employer to maintain records of working time which would include rest and break periods. Section 25 of the Act being the Organisation of Working Time Act 1997 places an obligation on the employer to keep the relevant records.
The effect of Section 25 and the decision of the CJEU, which we have covered in previous issues of our Newsletter, clearly place the onus of proof on the employer. In the absence of those records or evidence that the employee received their break then in those circumstances the employee must win.
The argument that an employer can make that the employee could have taken the break before or after the relevant meeting is actually an issue for the employer. It would be a matter for the employer if such meetings are being organised to structure them in such a way that the employer ensures that the employee gets the relevant rest and break period.
Now of course employers can protect themselves. They can provide the contract of employment or staff handbook, which is given to the employee and sets out the entitlements under Sections 11, 12 and 13 of the Act of 1997 and stipulates what the entitlement is and advises the employee to advise the employer if they are unable to take a particular break at a particular stage then in those circumstances there is an argument that the employer cannot be held responsible if the employee does not take the relevant break. Saying this, this is not a total carte blanche relief. The case of Commission –v- United Kingdom and the opinion of Advocate General Kokott clearly sets out that it is not sufficient simply to have the entitlement set out in writing. There is also a requirement for an employer to make sure that the relevant rest and break periods are actually taken.
Following on from the decision of the CJEU it now appears necessary for employers to keep the appropriate records in place.
We fully understand the rationale of the Adjudication Officer in this case. Like everything these cases give an outline of what the case is about and not everything is always recorded. Saying that, from the way the decision is set out we would have concerns that the burden of proof has been put on the employee. In our opinion the burden of proof is always on the employer.
A similar issue arose in case ADJ-00024507. This however arose under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012 SI 36/2012.
In this case the Adjudication Officer held that the employee did not give specifics of particular dates on which the employee did not get rest intervals. The employer had produced records. These records on their own admission had rest and break periods which were automatically put in and did not necessarily equate to actual rest and break periods. The employer argued that the employee could have advised the employer if these were not correct but did not do so. The Adjudication Officer found in favour of the employer. Again we would have a difficulty in relation to this. This case again appears to put the onus on the employee to notify the employer. Where an employer has clocking records then it is a matter for the employer to ensure that the appropriate rest and break periods are taken. Having an automatic time allocated for rest and break periods is not sufficient.
The Adjudication Officer in this case had held that the employee had not given specific dates. This is an argument which used to be raised, though this case was not referred to in this particular case of the Nolan Transport and Jakonis Antanas. That however was not the decision of the Labour Court. That is a case where the Labour Court had held that the obligation on the employee was to put forward particulars under which an employer could know what case they had to answer and then it was a matter for an employer to produce the relevant records and that the burden of proof passed to the employer at that stage. Since then the decisions of the CJEU have been very clear. The obligation on the employer is to maintain the relevant records of the actual hours worked. Equally the CJEU have been clear on the obligation on the employer to ensure that employees get their appropriate rest and break periods.
It will be interesting in relation to both these as to whether they go on appeal.
There does appear to be an issue that there needs to be a definitive ruling in Irish law from the Labour Court or the High Court and it may well be that this ends up going to the CJEU at some stage as to the obligations on the employer to ensure rest and break periods. In our view the decisions of the CJEU are very clear and the burden of proof is always on the employer. The labour Court has been clear on the law but their decisions are not always followed by the WRC. All the employee now needs to do is state that they did not get their proper rest and break periods and the burden of proof is then on the employer to make sure that they did. That is our reading of the law and it will be interesting to see how this area of law develops in the coming year.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.