Time and Attendance in Ireland: are you working within the law?

Since 1997 the Organisation of Working Time Act has been in force, affecting all employers in southern Ireland. Yet many businesses know little of the Act, leaving us to wonder if Ireland has failed to properly implement the working time directive? It is suspected that many Irish employers do not accurately record the working hours of their employees. This article is part one of a two-part series in which we look in detail at the Working Time Act, European court rulings on time and attendance and the possible implications of the most recent EU directive and court cases.

The Organisation of Working Time Act

The maximum working hours for most employees are set out in the Organisation of Working Time Act 1997. The act covers all aspects of working time including rest periods, breaks, night work, overtime, Sunday working and records. The act states that the maximum average working week for many employees cannot exceed 48 hours. This does not mean that a working week can never exceed 48 hours; it is the average that is important.

The act states that employers must keep detailed records of the hours that their employees work each day and week, as well as details of any leave granted to them. The employer must keep these records for 3 years. The following records must be kept:

• the starting time,
• finishing time,
• hours worked each day,
• hours worked each week
• leave taken

Working time, according to the directive is considered to be time during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

If there is no method of electronically recording the hour’s employees work, the employer must record the days and hours worked each week using a paper OWT1 form or a similar form. Under Section 8 of the Act, an inspector from the Workplace Relations Commission has the power to get full access to these records.

Employers who fail to keep records under these Regulations are guilty of an offence and are liable on summary conviction to a fine not exceeding €1,900. These legal obligations which are set out in employment law have not been affected by the General Data Protection Regulation (GDPR).

Other records that must be kept

• Name and address of each employee, their PPS numberand a brief statement of their duties as an employee
• A copy of the statement of employment provided to each employee under the Terms of Employment (Information) Act 1994–2014
• Days and total hours worked in each week by each employee
• The days and hours of leave granted to each employee in each week for annual leave or a public holiday, and the payment made to each employee for that leave
• Any additional day’s pay for a public holiday provided for each employee
• A copy of a written record of notification of working time issued to an employee as provided for in Section 17of the Organisation of Working Time Act 1997

The records kept by an employer must be presented in a format that can be easily understood by an inspector.

Exceptions to the working time legislation

Regulations on working time and rest periods does not apply to the Gardaí, defence forces, employees who control their own working hours or family employees on farms or in private homes. The Protection of Young Persons (Employment) Act 1996 regulates the working hours of young people under the age of 18. Separate regulations govern the working time of trainee doctors, those employed in mobile road transportation activities and people working at sea.

Digital presenteeism

The Chartered Institute of Personal Development (CIPD) in the UK claims that there is a growing problem of “presenteeism” in the workplace. This originally started out as the phenomenon of people showing up for work even when they were sick. We are constantly connected through our laptops, smartphones, tracking devices, and apps, leading to an erosion of the distinction between work and home life. This means that most people are working longer hours than they realise, and these hours often go unrecorded.

Implications of European rulings

In May this year, the European Court ruled that companies in the EU must set up a system to record how many hours their employees work every day. The judgment requires all EU member states to ensure employers establish such systems, which the court said were necessary to enforce legal limits on working hours. Member states were responsible for implementing the EU’s working time directive, which outlines maximum working hours as well as minimum daily and weekly rest periods for employees.

The judgment came after the Spanish trade union CCOO requested a Madrid court to rule on whether the local branch of Germany’s Deutsche Bank, which only measures over time, had to establish a system to record employees’ working hours. The Spanish court requested a ruling from the European Court of Justice.

In another case, employees at Tyco took on their employer and won. Tyco was a Spanish security firm who closed all their regional offices across Spain in 2011. This meant that the employees did not have a fixed place of employment and had to travel to all their jobs to install security equipment. The employees brought a case to the Court of Justice of the European Union (CJEU) arguing that time spent travelling to work should be counted as working time. The CJEU agreed with them.

There are huge implications for Irish employers if decisions like the Deutsch Bank and Tyco case are given a statutory basis in Ireland. Employers would be well advised to agree to some type of arrangement or protocol with their employees if it is not already provided for in the contract of employment. It would also be advisable for employers to try to schedule the first and last call of the day close to the employee’s home so that travelling time is kept to a minimum. Many employers currently do this, as well as agreeing a fixed rate for travelling time.

Where do we go from here?

Recording time and attendance is a big change, especially if you run a business with many 100’s of employees. Yet it has been proven in Scandinavia and other EU countries that implementation of the legislation can be a positive change. Employers save time and money, and employees can track their hours and ensure they are paid fairly for what they work. Many have said that when earning a fixed wage, the workplace becomes more equal, as it shows when a co-worker on the same salary does less work.

Stay tuned for part two of this article where we will look at how biometric time and attendance systems are the keys to complying with legislation, saving time, money and admin.