Do your flexible work arrangements leave you vulnerable to working-time claims?

Employers have stringent rules to follow when recording employees’ working time.

By Ben Conway William Fry

YOUR CHALLENGE AS a business embracing flexible and innovative ways of working is to reconcile these with the long-standing rules on working time.

Flexible working is often seen as a work-life balance panacea, embraced by employers wanting to attract talent and employees needing to carve out time for personal commitments.

But employers who overlook their obligations under the Organisation of Working Time Act 1997 (the 1997 Act) while building their flexible working culture risk being sued by their employees and damaging their brand.

Flexible working allows an employee to shape how, when and where they work. The forms it can take are limitless. Remote working, part-time working and compressed hours are typical examples.

Some employers go further, abandoning core working hours or measuring their employees’ performance purely by their outputs rather than time inputs. The knowledge worker has been freed from office hours and even the office itself.

The trend towards adopting these working practices seems set to continue. The government has pledged to issue flexible working guidance by the end of the year and the EU recently approved a directive on work-life balance, which requires member states to put in place a right for carers and parents to request flexible working arrangements by 2022.

Working-time obligations

In this world of creative working arrangements, businesses should not lose sight of their working-time obligations, which apply regardless of their employees’ locations and novel working patterns.

Key rules include the 48-hour limit on the average working week and the provision of daily rest breaks and rest periods. It can be difficult to meet these obligations if the workforce is fragmented in terms of time and place, especially if employees work remotely and are not under direct management supervision.

Employers need to monitor their employees’ working time and rest breaks and, if the rules are breached, address the underlying issues.

Line managers should discuss this with their reports at their regular one-to-one catch-up meetings. The approach needs to be proactive. An employer who simply directs employees to a relevant part of the staff handbook or intranet is not doing enough.

We know this from the Labour Court judgment in the case of Kepak v O’Hara in 2018.

The Labour Court awarded the complainant €7,500 and criticised the employer for its failure to curtail her excessive working, which included emailing overnight. The Labour Court held that the employer had permitted the complainant to exceed the statutory maximum working hours.

Keeping records

Another potential pitfall is the requirement to record working time and rest breaks – tricky even in a traditional office setting. The law says that an employer must keep records for three years that prove compliance with the 1997 Act. This obligation extends to keeping records that show that employees have taken their daily rest breaks.

Workplace Relations Commission (WRC) inspectors may require an employer to show them these records. WRC inspectors carry out around 5,000 workplace inspections each year, some of which are unannounced.

There is an exemption from the requirement to record rest breaks, but this applies only if an employer has a system for recording time and attendance – this can be digital or paper-based – and meets a series of conditions.

These include, amongst others, putting in place a procedure setting out how employees should tell their employer about a missed rest break, drawing this to the attention of the workforce and keeping records of any notifications received. Arguably, this can be more onerous than recording the rest breaks.

If an employer does not keep adequate records, then the onus will be on them to prove compliance with the working-time rules if an employee brings a claim to the WRC. An employer will have difficulty defending a claim in the absence of this evidence.

The WRC can order an employer who has breached the 1997 Act to pay compensation of up to two years’ wages. Employers should bear in mind that they may face multiple claims across their workforce.

An employer can also be prosecuted for a failure to keep records. The fine is €2,500 but there may also be hidden costs linked to the impact on the organisation’s reputation.

The upshot is that you need to check that your business has the systems and policies in place to meet your working-time obligations in this era of flexible working.

As these arrangements are likely to become increasingly prevalent, this issue should be high on your agenda. When it comes to following the rules on working time, there is not a great deal of flexibility.

Ben Conway is a senior associate at William Fry‘s employment and benefits department.

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