The Voice Of A Generation

Your First Job: Employer’s Responsibilities

Your employer had responsibilities too!

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I have no intention of boring you, or more importantly myself, with the historical developments of employer’s responsibilities. Suffice to say exactly one hundred and twenty year ago Lord Davey in Allen v Flood [1898] AC 1, 172-173 (I’m so sorry bear with me because law is actually really fun) said, “An employer may refuse to employ a workman from the most capricious, malicious or morally reprehensible motives that can be perceived but the workman has no right of action against him”. Which is a zinger of a way to say that an employer can do whatever they want. Emphasis on the term ‘workman’ as the law was particularly discriminatory against women. This was the position of the law for decades after.

Nowadays employee/employer relationships are governed by detailed employment legislation. I will set out the main legislation which will cover hours of work, breaks and rest periods, annual leave and payment of wages.

Terms of Employment (Information) Act 1994-2014 (TEA)

Employers are legally required under the TEA to provide employees with certain information about their employment. If you do not get a written copy of this within two months of employment the employer has breached the legislation and you can bring an action. You could also just ask the employer for a copy but that would be too easy. If you do not have a copy, it is up to the employer to prove they gave you one. The penalty for breaching this is almost always four weeks remuneration.

Organisation of Working Time Act 1997 (OWTA)

The OWTA governs all things time-related such as lunch breaks, rest periods between shifts, overtime and holiday entitlements. Where a breach is found an employee can recover up two years of compensation for each breach, generally, it won’t be that high.

I have worked in many a job where the OWTA was breached time and time again (that was a legal time joke, sorry not sorry). Don’t worry I will absolutely TL:DR this section.

Daily Rest Periods

You are entitled to a rest period of at least 11 consecutive hours in each 24-hour period. In practice, this means if you finished work at 9 pm your next shift can’t start before 8 am. There are some exceptions for shift workers and other categories of worker under the OWTA.

Rest Intervals at Work

Your boss must ensure you do not work for more than four and a half hours without a break of a least 15 minutes

This is the responsibility of your boss, so when you do not go on break because you had 100 things to do with an impossible deadline, then you ask for a 15-minute break and your boss hits you with the sentence, “You should have gone earlier, it’s too late now”. You can hit back with, “Actually it’s your responsibility to make sure I go on break or you are breaching section 12(1) of the Organisation of Working Time Act 1997”. He will reply, “See you in 15 minutes” and you will be a hero.

The employer must ensure you do not work for more than six hours without a break of a least 30 minutes. The 15-minute break may be included in the break of 30 minutes.

Repeat the same steps as above.

Weekly Rest

You are entitled to at least 24 hours rest in each seven-day period. That 24 hours must also have regard to the daily rest period of at least another 11 hours. Which according to my calculator is 35 hours continuous rest per week.

The boss makes you work without 11-hour breaks between shifts? No problem just hit him with this zinger “Have you noticed how you regularly breach section 11 of the Organisation of Working Time Act 1997 because I have”. He will think you are bluffing then hit him with, “Are you aware that the award for damages can be twice my yearly salary? This is before I even mention you never give me 15 minutes breaks”. Now you can enjoy your lie-ins.

Weekly Working Hours

An employer may not allow an employee to work in each period of 7 days more than an average of 48 hours over a reference period. The reference period is averaged out over 4 months (normally) but can be 6 months in certain circumstances.

This one is actually quite difficult to win and there are some exceptions such as seasonal work.

Notification of Overtime

The OWTA provides that an employer must give the employee a minimum of 2 hours’ notice of the requirement to work overtime. If this is not given the employee does not have to work the overtime. The employer may claim the defence of exceptional circumstances but this is a really high bar to get over.

This one is one I personally would never bring because usually, it is to cover for a colleague in a situation. You might also be helping the boss out who is stuck in a pickle and I take every opportunity to be in a position where the boss owes me.

Annual Leave

Annual leave is an obligation imposed for health and safety reasons. Due to European Law, the right to leave has been characterised as a fundamental social right and recognised as such in the Labour Court. A breach of annual leave rights can be costly for employers.

Every employer must ensure that an employee received their annual leave entitlement. Normally this is four weeks. In these four weeks, you are entitled to receive an uninterrupted (no phone calls, emails etc.) break of at least two weeks. Even if you want to take four one-week breaks and your employer agrees, the employer is in breach of the OWTA.

This can be quite complicated cases but the award for damages can be large.

Payment of Wages Act (PWA)

The PWA gives all employees a right to a pay slip which will show your gross wage and details of all deductions. The issue that comes up most here is in relation to deductions. The usual culprits which are deducted by law include tax (PAYE) and social insurance (PRSI). There may be pension contributions or deductions with your written consent, for example, trade unions subscriptions. Failure to pay all or part of the wages due to you is considered an unlawful deduction and you can complain under the PWA.

What if you have a bad day and accidentally break something? Or you are on realised you have made a mistake which will result in a till shortage? Or you employer deducts wages for your uniform?

The above deductions may be allowed. In these case’s the deduction is a payment from your wage to the employer and will be allowed only where:

It is allowed for in your contract.

It is fair and reasonable.

You have received a written notice of the deductions – if the deduction is due to your mistake you must be given a full week’s notice.

The amount of the deduction does not exceed the loss or cost of the service.

The deduction takes place within 6 months of the loss/cost occurring.

Final Thoughts

We have come a long way in one hundred and twenty years. These are only a small number of responsibilities an employer owes their employees. In the event of a breach of any of the above, you can try to resolve the issue internally through the Human Resource Department. If that doesn’t work you can put in your own application to the Workplace Relations Commission (WRC) and an adjudication officer will hear both sides before deciding on the issues

The important thing to remember when going to the WRC is to keep emotion out of the case. Once you inject emotion it can come across like you are trying to ‘get back at the company’ and you can lose credibility. Do not take anything personally particularly in relation to equality cases or discrimination cases. Let the evidence do the job.

Hope this helps and remember – Always read the fine print.

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