Complainant

Respondent

Anonymised Parties

A Retail Betting Assistant

A Retail Bookmakers

Representatives

The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033096-001

10/12/2019

In May 1997, the complainant commenced working as a betting assistant in one of the respondent’s bookie’s shops.  At the hearing, she said that she actually started with a previous company in October 1993 and that she transferred to the respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  She resigned in February 2020, by which time she was a senior retail betting assistant.  She worked between 20 and 24 hours per week and she earned €10 per hour.

The complainant claims that the respondent breached the provisions of Section 12 of the Organisation of Working Time Act 1997 (“the OWT Act”) in relation to her entitlement to statutory rest breaks during the working day.

In her evidence at the hearing, the complainant stated simply that she “never got breaks.”  She said that she worked two days a week, one of which was normally a Saturday or Sunday.  On each working day, she normally worked a 10 hour shift.  She said that, during the week, there were two retail betting assistants on duty and on Saturdays, three people were rostered.  She said that the shop was always too busy to take a break and that she “just waited for things to get quiet.”  On some days, she said that it would be impossible to take a break, and it was rarely possible to take a break for one hour.  She said that she and her colleague normally had their dinner while they were on duty at the counter in the shop.

Cross-examining of the Complainant

On behalf of the respondent, Ms O’Sullivan asked the complainant why, in one section of her complaint form, she claimed that she “got no breaks” and, on another section, she said that she got her breaks “50-50.”  The complainant replied that she never got a break of one hour.  She said that she felt that she was prevented from leaving the shop because she couldn’t leave her colleague on her own. 

Ms O’Sullivan asked the complainant what it was that stopped her from leaving the shop and she said that she “couldn’t leave a girl on her own” to manage the customers.  When Ms O’Sullivan suggested to the complainant, “you wanted to manage the customers,” the complainant said, “I was doing my job.”  She said that she never took a break for an hour, and that there was “no such thing” as an hour’s break.  She said that she never knew, when she arrived at work on any day, when she would get a break, and breaks were never rostered.

The complainant was one of a number of the respondent’s retail betting staff who, in 2018, submitted complaints to the WRC about breaches of section 12 of the OWT Act.  In each case, the adjudicator found that the allegations regarding the breaches were well founded.  Ms O’Sullivan asked the complainant why she didn’t speak to her manager about not getting a break.  The complainant said that she “just went along with everyone.”  She said that, since the outcome of the previous cases, some of the staff took a break of one hour, but they were mainly part-time staff.  She said that she generally got a break when there was a gap in customers in the shop.  She said that she didn’t complain to anyone about the problem.

Ms O’Sullivan reiterated to the complainant that she may not have got her breaks because she chose not to leave the manager in the shop on her own and the complainant replied, “of course I chose to stay with the manager.”  She said that when there were three people working in the shop on a Saturday, depending on the number of customers in the shop, it may have been possible to take a break, but certainly not for a full hour.

Since the outcome of the 2018 complaints, the complainant said that her manager wrote down in a notebook the times that she didn’t get a break; however, Ms O’Sullivan said that there is no record of breaks having been missed.  The complainant said that she is sure that the managers kept a log of her missed breaks, but Ms O’Sullivan repeated that no record exists of the complainant having missed any breaks.

The complainant replied that “my till was going all day” and there was “no stoppage for an hour.” 

Recording of Missed Breaks

In advance of the hearing on March 12th 2021, the respondent sent a very comprehensive submission to the WRC setting out their defence to this complaint.  In summary, the respondent claims that since a number of complaints about the same matter were adjudicated on in 2018 and 2019, they have in place a procedure to ensure that staff get their breaks.  They also have a policy of recording when it has not been possible for an employee to take a break, so that it can be taken at a later time.  There has been widespread communication of this new policy and staff and managers have been trained on how it is to operate.  Following the re-opening of the respondent’s outlets after the first Covid 10 lockdown, training on the breaks procedure was included in re-opening training modules.

As this complaint was submitted to the WRC on December 10th 2019, Ms O’Sullivan, on behalf of the respondent, said that the statutory reference period within which I have authority to consider a breach of the OWT Act is from June 11th to December 10th 2019. 

At the hearing, Ms O’Sullivan said that there was nothing to prevent the complainant from taking her breaks, and she noted that she provided no evidence that she had not availed of her entitlement to breaks during the statutory period.  Since the outcome of the previous complaints to the WRC, Ms O’Sullivan said that the respondent has ensured that there is a system in place to facilitate the taking of breaks.

Ms O’Sullivan said that the complainant has not logged any missed breaks in the manner provided for since September 2018, and the respondent has not been made aware of any missed breaks during the relevant period.  A copy of the complainant’s electronically-logged start and finish times was submitted in evidence at the hearing.  Ms O’Sullivan argued that these records are in accordance with the Regulations attached to the OWT Act and that they allow interpretation of the complainant’s working time by an inspector of the WRC.  She said that, as these records are evidence of the working time of employees, the respondent is exempted from providing evidence of breaks taken.

As a senior retail betting assistant, Ms O’Sullivan argued that the complainant is aware of her entitlement to rest breaks, her employer’s procedure for taking breaks and the procedure for recording when breaks are not taken.  She said that “contrary to the vague, non-specific assertion in her complaint form,” the complainant has not missed any breaks.

As a critical point, Ms O’Sullivan said that the complainant cannot say that she was not aware of the procedure for recording missed breaks and, for this reason, she said that it is not credible for her to say that she didn’t get her breaks.  Ms O’Sullivan said that the complainant “did not use the system” for recording missed breaks and she suggested that the complainant may have elected not to take her breaks.  

Exemption from the Requirement to Keep a Record of Breaks

Ms O’Sullivan argued that no negative inference should be drawn from the fact that the respondent cannot produce evidence that the complainant got her breaks.  She claimed that, in accordance with the exemptions set out at section 5 of Statutory Instrument 473/2001, the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 (“the 2001 Regulations”), the respondent is not required to keep a record of the breaks taken by employees because they have an electronic means of recording working time.

In respect of the recording of rest breaks, the respondent complies with the exemption from section 25(2) of the Act set out in the 2001 Regulations.  In particular,   

a.              The respondent operates “electronic recordkeeping facilities” (in accordance with Regulation 5(a)(i)) as they have informed employees that they must log on and log off of the EPOS software at the beginning and the end of the day respectively;

b.              The respondent has notified each employee in writing of their rest break entitlements under sections 11, 12 and 13 of the Act (in accordance with Regulation 5(a)(iii)); 

c.              The respondent has implemented procedures by which employees may log missed rest breaks (in accordance with Regulation 5(a)(iv));

d.              The respondent has kept a record of notifying the employees of such matters (in accordance with Regulation 5(a)(v)); and

e.              The respondent keeps a record of each of these logged missed break (in accordance with Regulation 5(a)(v)).

The respondent has communicated these provisions in writing through the breaks policy.  It is the respondent’s position that they have complied with the procedures which are now in place, and that the complainant has not missed any breaks. 

Context

This matter was adjudicated on in 2018, when around 50 of the respondent’s employees submitted complaints that their employer was in breach of section 12 of the OWT Act, and that they did not get their entitlement to breaks during the working day.  The complainant was among this cohort and the adjudicator found in her favour and awarded her compensation of €500.  Since then, the respondent has re-introduced a system of recording missed breaks, has communicated this to employees and managers and has provided training for all employees on the operation of the system.  The procedure requires an employee who, for whatever reason, has not been able to take a break on any given day, to inform his or her manager, who will keep a record of the missed break and ensure that the employee takes the break at a later time.

The Organisation of Working Time Act 1997

Section 12 of the OWT Act places a statutory obligation on employers to ensure that an employee is given breaks during the working day:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The issue at the heart of this complaint is whether the complainant received the breaks to which she was entitled under section 12 of the Act. The complainant made a cogent case that she did not receive such breaks. 

Did the Complainant get the Breaks to Which she was Entitled?

To demonstrate that an employee took the breaks to which she was entitled, section 25(1) of the Act requires the employer to keep records to show compliance with section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

In the case we are concerned with, the respondent relies on the provisions of Regulation 5 of the 2001 Regulations, to confer an exemption from their record-keeping obligations under Section 25(1) of the OWT Act. 

Regulation 5 states:

(1) For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks—

(a) employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities, and,

(b) employers who have manual as opposed to electronic record-keeping facilities and who are required to keep records in accordance with Regulation 4.

(2) The exemption under paragraph (1) shall only apply to an employer if he or she complies with the following conditions—

(a) the employer notifies in writing each employee of the rest periods and breaks referred to in sections 11, 12 and 13 or, in case of the non-application of one or more of those sections (by virtue of regulations referred to in section 4(3), a collective agreement or a registered employment agreement referred to in section 4(5), or an employment regulation order referred to in section 4(6)) of the terms of such regulations, collective agreement, registered employment agreement or employment regulation order and, in particular, of the requirement contained in section 6(1),

(b) the employer puts in place, and notifies in writing each employee of procedures whereby an employee may notify in writing the employer of any rest period or break referred to in sections 11, 12 and 13 of the Act to which such employee is entitled and was not able to avail himself or herself of on a particular occasion and the reason for not availing of such rest period or break,

and

(c) the employer keeps—

(i) a record of having notified each employee of the matters provided for in paragraph (a),

(ii) a record of having notified each employee of the procedures provided for in paragraph (b), and

(iii) records of all notifications made to him or her by each employee in accordance with those procedures.

(3) A notification made to an employer by an employee under paragraph 2(b) shall be made within 1 week of the day on which the rest period referred to in that paragraph became due to, but was not availed of by, the employee. Where such notification is duly made the employer, having regard to the circumstances pertaining to the work of the employee and to the employee's health and safety interests, shall, as soon as possible, make available to the employee such rest period or break as is equivalent to the rest period or break which had been due to, but had not been availed of by, the employee. Failure by an employee to avail of such equivalent rest period or break offered by an employer shall not constitute a breach on the part of the employer under the Act or these Regulations.

As the respondent is asserting a right to an exemption from keeping records as set out in the 2001 Regulations, my task is to determine if this exemption applies.

Does the Exemption Apply to the Respondent?

For an employer to secure an exemption under Regulation 5, they must satisfy a number of criteria.  The first of these is the requirement to “have electronic record-keeping facilities such as flexi-time or clocking in facilities”.

The respondent has cited the High Court case Stasaitas v Noonan Services Group Ltd [2014] ELR 173as an authority for the proposition that the Act does not require breaks to be specified in all circumstances.  However, the complainant in that case was a security guard working in an industry which, under the Organisation of Working Time (General Exemptions) Regulations, 1998 is exempt from the requirements of Section 12 of the Act.  It is my view that this precedent is not relevant to the complaint we are considering here.

I note the respondent’s contention that it has always complied with its obligations under Section 12 of the Act.  To demonstrate this compliance, they are required under Section 25(1) to keep appropriate records unless exempted by the 2001 Regulations to do so.  It is well settled that records under Section 25(1) should show the timing and duration of employees’ breaks.  It follows therefore, that if the electronic record-keeping facilities referred to under Regulation 5 are to be relied on for the purposes of an exemption, then they must be capable of providing a record not only of employees start and finish times but also of the time and duration of breaks.

I note the respondent’s submission that they have long-employed EPOS software for the purposes of calculating payroll and that this system is also used for logging employees’ start and finish times.  However, it is clear to me that the EPOS system is not designed for the specific objective of recording time and attendance and does not provide the functionality to record the time and duration of employees’ breaks.  For this reason, it is my view that the respondent does not satisfy the first criteria of Regulation 5 and, therefore, cannot rely on the 2001 Regulations to provide an exemption from the requirements of Section 25(1) of the Act to keep records of breaks.

I note the respondent’s submission that they have introduced a rest break policy in compliance with the requirement under Regulation 5(2) to notify each employee of their entitlement to breaks and the introduction of a procedure to record missed breaks.  The respondent relies on this policy to differentiate this complaint from the Labour Court finding in Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 46/2004)where the Court determined that:

“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.”

The first hurdle to overcome is the requirement to show that there is an electronic system in place which is capable of recording rest breaks and I am not satisfied that the EPOS system delivers this capability.  In light of my finding that the respondent does not satisfy the first criteria of Regulation 5, the existence of a manual procedure that places the onus on an employee to report a break not taken, cannot be persuasive in arguing the case for an exemption under the 2001 Regulations.

Conclusion

Having heard this complaint and the respondent’s current position, it is my view that, from the date of the issuing of the previous finding in favour of this complainant, until she left her employment in February 2020, there was no material change in the employer’s operations to ensure that the complainant was facilitated to take her breaks during her working day.  I find also that, during the relevant statutory period from June 11th to December 10th 2019, there was no record of the breaks that she took.  Finally, it is my view that the respondent is not entitled to an exemption under the 2001 Regulations, to be excused from its responsibilities to maintain such records.  For these reasons, the only conclusion available to me is, during the statutory timeframe, the complainant did not get the breaks to which she was entitled and the respondent was in breach of section 12 of the OWT Act.

I find that this complaint is well founded and I direct the respondent to pay the complainant redress of €500.

Rest breaks at work