There’s an election on, so we need a political reference. The late Albert Reynolds, former Taoiseach and leader of Fianna Fáil famously said: “It’s the little things that trip you up”. This certainly resonates with really interesting cases from the Decisions section of the Workplace Relations Commission (WRC) website. Both cases draw upon the Organisation of Working Time Act which is actually a piece of Health and Safety legislation. The Act sets out that: –
- The employer is responsible for ensuring that the standards for working time and rest set out in the legislation are provided to the employee
- The employer is responsible for keeping leave, rest and working time records (prescribed in the legislation) to demonstrate that this has been done.
Most employers are (at least vaguely) aware of the requirement to keep records. In contrast, most are less well informed about the form and type of records to be kept. We meet with many prospective clients that rely on payslips, pay analysis sheets, records from EPOS system logins and a variety of other types of record. It is very clear from the primary regulations that these are not, in fact, suitable and do not fulfil the Working Time Act record-keeping obligations.
Recent case law has supported this view. For example, the case of Stablefield v Lacramiora, the Labour Court upheld a decision by the WRC adjudicator. The key elements in the decision were that the Employer could not demonstrate that the requirements of the Working Time Act had been complied with as appropriate records were not maintained. The employer relied on payslips and the pay analysis records but these were not accepted as evidence.
A similar problem arose for the employer in a different case – Betting Assistant v Bookmaker. In this case, the adjudication officer was very clear – and stated that it is not appropriate for the employer to attempt to put the onus on the employee to take their breaks and that there is an onus on the employer to provide evidence showing that the employee has taken breaks. The adjudicator went on to say that without records, there is no way in which the employer can refute the assertions of the employee. This position was endorsed by the Labour Court. The Employer, in this case, tried to rely upon EPOS records but the judgement was unequivocal in relation to these records:
“However, it is clear from the evidence adduced, that the EPOS system was not primarily designed to manage time and attendance and does not provide the functionality to record the time and duration of employees’ breaks.” Both mentioned cases resulted in significant fines/compensation being paid by the employers.
What Working Time records are required to be kept by employers?
Employers must keep records of an employee’s hours worked on a Form OWT1 or in a substantially similar way. There is a specific exemption from the OWT 1 requirement for employers that use an electronic system of record keeping by clocking in and out. There are a number of other exemptions for keeping records of rest breaks based around providing information and retaining records of the communications with employees. (See the WRC site for full details – or just talk to us).
The bottom line is that Employers need to approach their working time record-keeping obligations in a systematic and thorough fashion. Of course, HR Duo’s HR software fulfils all the requirements to comply with legislation and demonstrate compliance. The software also has the facility to record the communications records that are required should employers wish to utilise those exemptions.
Are you concerned about your own business’s compliance with the Working Time Act? Our free checklist is a good way to assess your status and identify areas that need attention. You can download it by clicking on the image below.
February 11, 2020
By Florence Kenefick