Significant increase in award for non-compliance with rest break entitlements

An award of €150 by an Adjudication Officer (the “AO”) in the Workplace Relations Commission (the “WRC”) has been increased by the Labour Court to €15,000 (100 times higher than the original award) for non-compliance with rest breaks. The decision of Sandra Cooneys Home Care Ltd. v Deirdre Morgan (DWT1914) is a significant outcome that all employers need to be aware of.

Rest break entitlements

Pursuant to the Organisation of Working Time Act, 1997 (the “1997 Act”), and subject to a limited number of exceptions, employees are entitled to:

  • a daily rest period of 11 hours; and
  • a weekly rest period of 24 consecutive hours (preceded by the daily rest period of 11 hours). Alternatively, an employer may grant, over a period of 14 days, 2 rest periods, each of 24 consecutive hours. If these rest periods are consecutive, they must be preceded by a daily rest period of 11 hours and if they are not consecutive, each rest period must be preceded by a daily rest period of 11 hours.

It is not a defence for employers to say that employees are aware of these entitlements but nevertheless request to be rostered for additional shifts.

The facts

In this case, the employee, Deirdre Morgan, worked as a home care assistant every day for over 5 months for her employer, Sandra Cooneys Home Care Ltd. During this period, Ms. Morgan did not receive a daily rest period of 11 hours or a weekly rest period at any point from 31 January 2018 to 6 July 2018 inclusive. Ms. Morgan did however receive a daily rest period of 10 hours during this period and appears to have been rostered to work significantly more than 40 hours per week throughout this time.

In the period 6 July to 30 July 2018, Ms. Morgan received a 10 hour daily rest period, rather than 11 hours and did not receive an adequate weekly rest period during this time. While she received two consecutive 24 hour rest periods in each 14 day period during this time, such rest period was not preceded with the daily 11 hour rest break required under section 13 of the 1997 Act.

The employer tried to argue that Ms. Morgan actively sought to attend at work every day before the 11 hour daily rest period had expired, rendering the breach her fault as she actively didn’t comply with the requirements under the 1997 Act. However, this argument was rejected by the Labour Court. It is always the employer’s responsibility to ensure that all employees receive their proper rest breaks in accordance with the 1997 Act. Therefore, even if an employee is keen to start work early, an employer has an obligation to ensure that doesn’t happen if it means he/she will not get their proper rest breaks under the 1997 Act.

The award

The AO on hearing the matter initially found in Ms. Morgan’s favour and awarded her €150. Ms. Morgan then appealed the matter to the Labour Court. In determining the amount of the award, the Labour Court considered the gravity of the infringements and the sustained nature of the infringements. The Labour Court noted that employers are obligated to ensure that the prescribed minimum periods of rest are taken and that the employer here took no practical steps to ensure that its obligations in this regard were observed. In determining what was a suitable award, reliance was placed on the CJEU decision in Von Colson & Kamann v Land Nordrhein[1], which made it clear that where the right to adequate rest is infringed, the award should not only compensate for economic loss sustained but must provide “a real deterrent against future infractions”. As such, the Labour Court significantly increased the award made by the AO in the WRC to €15,000.

The maximum amount that can be awarded for non-compliance with rest break entitlements under the 1997 Act is up to 2 years remuneration.

This decision should be a warning to employers that significant awards can be made where an employer has breached an employee’s rest break entitlements. The employee in this case was paid €12 per hour so the compensation awarded by the Labour Court equates to 1,250 hours of work (which equates to more than 31 weeks’ or just under 8 months’ pay in the case of an employee who works 40 hours per week).

Feel free to contact Leman Solicitors, should you need any advice in relation to compliance with working time legislation.

[1] [1984] ECR 1891

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