Complainant

Respondent

Parties

Job David

National Rehabilitation Hospital

Representatives

Represented himself 

Brian Joyce, IBEC

Act

Complaint 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-00059195-001

03/10/2023

The complainant commenced employment as a staff nurse in March 2003.  In April 2015, he was appointed as a clinical nurse manager (CNM) grade 2 on night duty in the hospital.  He works part-time and is rostered for three nights one week and four nights the following week.  He is paid an hourly rate of €37.03.  His complaint concerns the requirement for him to take his breaks while on duty and the fact that a “red circled” arrangement that applies to a colleague CNM regarding pay for breaks does not apply to him.

The respondent’s position is that compensatory rest arrangements are in place for night duty CNMs and that the complainant’s terms and conditions regarding rest breaks are correct.

The complainant works seven night shifts per month.  He starts work at 19.45 and he finishes at 8.05 the following day, a shift of 12 hours and 20 minutes.  He is permitted to take a paid break of 40 minutes and an unpaid break of 50 minutes, with the result that he is paid for working for 11 hours and 30 minutes.

In the submission he provided after the hearing, the complainant outlined the complexity of his role and the responsibilities he undertakes as a clinical team leader and as a sole CNM 2 on night duty.  He is responsible for 120 patients including children, who have complex care needs and with high-risk issues.  He is also responsible for 40 staff, for patients’ families and visitors and for quality, safety and management of the NRH premises.  The complainant said that, when he is on a break, he may be required to respond to a call to attend to a patient, meaning that his break is interrupted. 

The complainant said that his claim is based on the fact that a colleague who does the same job as him and who also works a shift of 12 hours and 20 minutes, is paid for 13 hours.  This colleague is the only one remaining of four CNMs with a “red circled” agreement to be paid for 13 hours.  The complainant believes that this agreement is for CNM grade 2s like him who work on their own on the night shift and not just for the four named night duty CNMs.

The complainant provided a background to the situation that resulted in four CNMs on night duty being paid for 1.5 extra hours per shift.  Following a conciliation conference at the WRC in 2009, in January 2011, the Labour Court recommended that a ballot be conducted on three options to reduce the working week to 37.5 hours and to bring the pattern of breaks on the night shift into line with the provisions of the Act.[1]  Arising from the ballot, the management at the hospital agreed that four CNMs on night duty would be paid for their breaks.  The complainant said that he took over from one of these four CNMs in 2015 and he considers himself to be under the same terms of employment.  He said that staff nurses in the hospital are also paid for their breaks and they receive time in lieu if a break is interrupted.  The doctor on call is also paid for breaks.  The complainant provided examples of the policy in two regional hospitals where the CNM 3 and the assistant director of nursing are paid for their breaks.  In another Dublin hospital, he said that the issue is under negotiation. 

The complainant raised his grievance regarding the payment of breaks through the hospital’s grievance procedure and, in October 2023, he said that the resolution was unsuccessful.

The complainant said that he has not accepted a revised contract of employment which was issued to him on January 3rd 2024.  He said that he does not accept the job title of “clinical house manager.” 

At the conclusion of his submission, the complainant argues that he has been discriminated against because he is not paid equally with other workers who do the same or similar work to him.  He said that, due to the obligation to remain on call during his entire shift including mealtimes, he is entitled to claim for his breaks or to equal compensation. 

On behalf of the respondent, Mr Joyce also provided the background to the agreement that four CNMs who worked a shift of 12 hours and 20 minutes were paid for 13 hours.  Mr Joyce said that the agreement was red circled for the four named employees that were undertaking the role of night duty CNM 2 in 2011.  All but one of these CNMs remains working in the hospital.  The complainant was appointed to the role of night duty CNM in April 2015, and Mr Joyce said that his terms and conditions are outside the scope of this red circled agreement.

Mr Joyce submitted that the complainant has not specified any date on which he did not get his breaks and it is the respondent’s position that he has always received his statutory entitlement to breaks.  Mr Joyce referred to the decisions of the Labour Court in Jakonis Antanas v Nolan Transport[2], ISS Limited v Zhivko Mitsov (and three others)[3] and Erac Ireland Limited v Eddie Murphy[4]which emphasise the necessity for a complainant to set out in detail the specifics of a claim that a provision of the Act has not been complied with.

Mr Joyce referred to s.12 of the Act which provides that an employee is entitled to a break of 15 minutes after working for four hours and 30 minutes and a break of 30 minutes after working for six hours.  He also referred to s.4 of the Act which allows the Minister to exempt certain classes of employees from the breaks set out under s.12.  In SI 2021/1998, the Minister exempted the hospital sector from the application of s.12 by including, at paragraph 3 of the Schedule,

3. An activity falling within a sector of the economy or in the public service -

(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

and, in particular, any of the following activities -

(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment[.]

(The remaining subsections (ii) to (x) are not relevant to the complaint under consideration here.)

The exemption provided in paragraph 3 of the Schedule is qualified by Regulations 4 and 5:

4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.

5 (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.

(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.

Mr Joyce said that the CNM on night duty must remain on site for the period of their shift because they may need to stand down from a break to deal with some unforeseen circumstance or an emergency in the hospital.  Breaks may be taken at any time during the shift and food and rooms for rest are available.  If the CNM on night duty is interrupted during a break, there is a process in place for them to notify the nursing management team at handover and to avail of compensatory rest.  The director of nursing, Ms Marsh, said that, since February 2023, the complainant has had his break interrupted on two occasions and that, on both these occasions, time off in lieu was added to his core hours.    

Mr Joyce referred to the decision of the High Court in 2014 in Stasaitis v Noonan Service Group Limited[5] where the President of the High Court, Mr Justice Kearns held that a security officer who was required to remain in a security hut for the duration of his shift was able to take his breaks.

Finally, Mr Joyce referred to s.6(2)(b) of the Act which provides that, where it is not possible for an employee to take a break, where it can be objectively justified, other arrangements should be in place to compensate the employee.  However, s.6(3) provides that such arrangements do not include monetary compensation or any benefit that does not “improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work.”

It is the respondent’s case that CNMs on night duty are provided with a place to take their breaks, and with food and refreshments and that they may take a break at a time that suits them.  The hospital’s position is that it has met its obligation under the Act to provide arrangements for breaks that satisfy the criteria of equivalence and compensation and that it complies with the Act in accordance with the exemptions provided under SI 21/1998.

Compliance with Section 12 of the Organisation of Working Time Act 1997

At the hearing of this matter, I explained to the complainant that my role, as the adjudicator of a complaint under s.12 of the Organisation of Working Time Act is to investigate whether there is evidence of non-compliance with the law regarding breaks at work.  Section 12 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).

From the submissions provided by the complainant, the issue at the heart of this complaint is not that he doesn’t get his breaks, but that, as a CNM on night duty, he is required to take his breaks in the hospital and to be available in case of an emergency. 

This exact scenario has been legislated for in SI 21/1998, where the Oireachtas has provided an exemption for employers in specific sectors from the application of s.12 (and ss. 11, 13 and 16), subject to the requirement to provide compensatory rest and adequate facilities that protect the health and safety of the employees who may be required to miss a break.  One of the sectors identified in the schedule attached to SI 21/1998 is the hospital sector, and in particular,

…the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment[.]

The complainant is involved in the treatment and care of people in hospital and I am satisfied that the exemption provided in SI 21/1998 applies to his job.  I am also satisfied that, while he must remain in the hospital during his breaks, he has available to him comfortable and adequate facilities to enable him to take a proper rest away from his job and to enjoy a meal, the cost of which is covered by his employer.  I note also from the evidence of the director of nursing that the occasions on which the complainant has an interrupted break are infrequent.

Considering the complaint of unequal treatment, I accept that the complainant is paid less than a colleague who is doing the same job.  I learned at the hearing that the red circled arrangement that applied to four CNMs in 2011 arose from negotiations following a ballot of staff on three options for new rosters.  It seems from the evidence that this was a pragmatic solution to a discrepancy that emerged from the application of the new rosters to reduce hours of work and to apply new arrangements regarding breaks.  The effect of the red circled arrangement is that a benefit is removed for future incumbents in the CNM night duty role and is eventually phased out.  At present, just one of the four people who were in the CNM night duty role in 2011 remains working in the hospital. 

The fact that the complainant is paid less than his colleague may be disconcerting and I can understand why he feels that it is unfair.  However, the red circled arrangement is not related to any of the nine grounds of discrimination which are set out at s.6 of the Employment Equality Act 1998 – 2015 and I am satisfied that it is not discriminatory.

Conclusion

I have considered this complaint and I am satisfied that the respondent is in compliance with s.12 of the Organisation of Working Time Act 1997 regarding breaks at work.  I am satisfied also that the hospital is entitled to avail of the exemption provided for in SI 21/1998 and that the principles of equivalence regarding compensatory rest and health and safety are being observed.  Finally, I am satisfied that the complainant is not subject to discrimination due to the way in which a colleague has a more preferential arrangement on a red circled basis.

Based on the conclusions I have set out above, I decide that this complaint is not well founded.

Breaks at work, compensatory rest, SI 21/1998