Q&A - Working Time Legislation in Ireland

1. If you pay discretionary sick benefit can you have a policy where that discretionary benefit is not paid if sick leave is taken either following or preceding leave, be that leave annual leave/maternity leave/parental leave?

There is no statutory obligation on employers to pay sick leave and it is at the employer’s discretion as to whether or not sick leave is paid, keeping in mind the custom and practice in the organisation. An employer’s sick leave policy should clearly be set out in Employee Handbook. However if employers are placing different restrictions on employees who are on sick leave either before or after other protected leave such as maternity leave/parental leave, then there is a risk that such different treatment will fall foul of the Employment Equality Acts, which prevent discrimination on 9 grounds, including gender or family status. If an employee who would ordinarily receive payment in respect of sick leave does not receive such payment purely due to the fact that they were or are about to go on some other protected leave, such as maternity leave or parental leave, then there is certainly a risk that such different treatment is discriminatory. If an employee is on certified sick leave and the employer’s policy is to make a payment in respect of such certified sick leave, then it should be paid regardless of when it arises. If an employer suspects that there is an abuse of the sick leave policy, this can be dealt with in line with the employer’s disciplinary policy.

2. If you have an employee who is required to travel abroad, when does travel time begin?

This will depend on the nature of the role in question, e.g. is travel a necessary part of their employee or is this a one off requirement, the seniority of the employee in question (often senior staff are required to travel and to be more flexible with regard to their working hours). Each instance should be considered on a case by case basis.

It is important to note that the Tyco ruling only refers to workers who do not have a fixed place of work and who travel each day between their home and customers’ premises on behalf of their employers. If the employee in question is not a peripatetic worker then the Tyco ruling does not apply to them. If they are a peripatetic worker in the private sector then strictly speaking Tyco does not apply as it does not have direct effect to the private sector, and some implementing legislation will be required. If a company has an employee who is not a peripatetic worker but who travels regularly for work, then the question of working time and any payment in respect of travel time should be addressed in the terms and conditions of employment.

3. Did the distance travelled by the Tyco employees influence the decision or does it apply regardless of distance/time?

The Tyco decision was very fact specific and relates to peripatetic workers only. Each case involving peripatetic workers should be considered on a case by case basis. In addition, it does not apply to workers who have a fixed place of work.

In  the  Tyco  case,  Tyco  decided  to  relocate the  head office to Madrid with all  regional workers then remotely reporting into head office. The CJEU noted that the fact that the journeys of the workers at the beginning and end of each day to and from customers were regarded by Tyco as working time before the abolition of the regional offices shows that the work consisting of driving a vehicle from a regional office to the first customer and from the last customer to that office was previously considered to be working time by Tyco. The nature of those journeys has not changed since the abolition of the regional offices. The Court noted that it is only the departure point of the journeys that has changed and these particular and distinct facts directly informed the CJEU’s decision.

Currently the Tyco case only has direct effect to the public sector. Implementing legislation will be required prior to it having legislative effect in the private sector. In the interim however it is possible that an Irish court or tribunal could decide to apply the Tyco rationale in place of the strict provisions of the Organisation of Working Time Act 1997. Therefore private sector employers with peripatetic workers should be aware of the Tyco decision and be ready to take the steps to protect themselves from any potential exposure.

4. Can you set a retirement age for specific roles? What should you do if you have retirement ages in your contracts now? Should you remove them?

It is possible for employers to set retirement ages for their employees, however it is crucial, to avoid any question of discrimination on the grounds of age, for any such retirement age to be objectively justified. While this was initially the position due to the caselaw of the CJEU and  the  Irish  Equality  Tribunal,  this  requirement  for  objective  justification  now  has  a statutory footing by virtue of the Equality (Miscellaneous Provisions) Act 2015, which came into effect in January 2016. Amongst other things, this Act made amendments to section

34(4) of the Employment Equality Act 1998 so that it now reads:

‘…it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) or employees or any class or description of employees if –

(a)  It is objectively and reasonably justified by a legitimate aim, and

(b)  The  means  of  achieving  that  aim  are  appropriate  and  necessary’.  (Emphasis added)

If a retirement age is being set, then an employer must have a retirement policy, which sets out the objective justification for this mandatory retirement. The retirement age should also be specified in the contract of employment.

In terms of such objective justification, the caselaw shows that there are a number of questions which an employer will have to answer in seeking to objectively justify the setting of a mandatory retirement age, including:

• Do the measures seek to achieve a legitimate aim? Intergenerational fairness and dignity (avoiding disputes about concerning fitness to work beyond a certain age) have been held to be legitimate aims but reasons particular to the employer such as cost reduction improving competitiveness are not.
• Is the aim legitimate in the particular circumstances of their business? It is the particular circumstances of the business rather than the individual that should be considered.
• Are  the  means  of  achieving  the  aim  proportionate?  Or  are  there  other,  less discriminatory measures possible.

These are all questions which an Equality Tribunal/Adjudication Officer would consider in any action claiming that mandatory retirement ages are discriminatory. Additional questions may arise in line with an employer’s particular business culture.

5. Health and safety in terms of accidents for someone working at home, who is liable?

An employer has an obligation to provide a safe place of work for all employees, and this includes  any  employees  working  from  home.  In  the  event  that  you  have  an  employee working from home, you should ensure that a health and safety assessment is carried out of the employee’s workstation to ensure that it complies with health and safety requirements. The level of risk involved with such working from home will depend on the type of work involved and specific advice from a suitably qualified health and safety advisor should be obtained. In addition the Health and Safety Authority (www.hsa.ie) provides practical advice for health and safety considerations when employees are working from home. We also recommend that employers with employees who work remotely have a policy setting out guidelines and expectations for employees working from home.

6. An employee on terminal illness insists that they want to keep working until the illness is severe and ready to go on sick leave, is employer liable if something happens or if work aggravates the illness, should the employee be asked to stay at home?

An employer has an obligation to provide a safe place of work for all of its employees. Whether or not an employee with a severe illness can work, will ultimately be a medical question.  In  such  a  circumstance  the  employer  should  have  the  employee  medically reviewed  by  the  company  doctor  so  that  he/she  can  assess  whether  the  employee  in question is fit for work and, if applicable, recommend any reasonable accommodations which should be put in place to facilitate the employee continuing to work.

7. Public holidays while on long term sick leave – what is the entitlement?

All full time employees automatically have an entitlement to public holidays. However, for employees on long term sick leave, there is no public holiday entitlement for any employee who is absent from work immediately before the public holiday where such an absence:

1. Is in excess of 52 consecutive weeks by reason of an injury sustained by the employee in an occupational accident
2. Is in excess of 26 weeks by reason of an injury sustained by the employee in any accident  (excluding  1  above)  or  by  reason  of  any  disease  from  which  the employee suffers or has suffered
3. Is in in excess of 13 weeks for any absence authorised by the employer including a lay off, but excluding the absences under 1 and 2 above; or
4. Is due to a strike in the business or industry in which the employee is employed.

8. Can you give a specific example of calculating sick leave for an employee on long terms sick leave?

It should be noted that no calculation of annual leave is necessary until the period of sick leave comes to an end, i.e. the employee either returns to work or his/her employment ends.

When the employee returns from sick leave, check the organisation’s annual leave policy in respect of the annual leave year and when it runs from. An employer must determine the dates of the employee’s absences. An employer must also determine the untaken statutory annual leave accrued from the leave years and apply the 15 month carry over period in respect of the end of each leave year.

Example

Patrick was absent from work from 1 November 2015 to 1 November 2017

Leave Year  – 1 April 2015 to 31 March 2016 – more than 15 months will have passed since the end of this leave year by the time Patrick returns to work (in November 2017) and so no annual leave for this year carries forward.

Leave Year – 1 April 2016 to 31 March 2017 – Patrick will retain his accrued annual leave as the 15 month period from the end of this leave year will not have passed when he returns to work.

Leave year beginning 1 April 2017 – Patrick will accrue his annual leave up to his return to work and as normal thereafter.

9. Payment of accrued annual leave for employees on long term sick leave. Is it sufficient that this be calculated and paid annually?

It is prohibited to make a payment in in lieu of annual leave to any employees, regardless of whether they are on long term sick leave or not. An employee cannot demand annual leave during sick leave so if they have not returned to work by the expiration of the 15 month carry over period after the leave year in question then the entitlement in respect of annual leave in that leave year will expire. However if the employee remains on certified sick leave then they will continue to accrue new annual leave entitlements, subject always to the 15 months carry over period after the leave year in question.

Employees on long term sick leave may however accrue annual leave entitlements while on sick certified sick leave, but the entitlement to take such leave only comes into play when they return to work from the long term sick leave. The only time an employee can be paid in lieu of annual leave is when the employment relationship terminates.

10.     In terms of holiday accrual during long term sick leave, are we obliged to inform the employees about this change? If employee comes back today, do we give them holiday accrued from 1 August 2015 or if leave we pay them?

It is an employer’s responsibility to ensure that employees take their statutory annual leave entitlements and so if an employer has an employee who is on sick leave, they need to be aware that from 1 August 2015 these employees have been accruing annual leave entitlements. Therefore if an employee has been on sick leave since 1 August 2015, upon their return from sick leave (when they are certified as fit to return to work) they should be informed of their accrued annual leave entitlement. Similarly, if an employee is leaving employment having been on sick leave, any payments made to them in respect of the termination of their employment should include any accrued but untaken annual leave, including any annual leave accrued while they were on sick leave.

11. If someone does a sleepover shift  11pm-8am, is there a certain rest period after the shift is finished?

The Organisation of Working Time Act 1997 at section 11 provides that employees are entitled to ‘a rest period of not less than 11 consecutive hours in each period of 24 hours’ during which they work for their employers. This is for health and safety reasons to ensure that employees have a minimum period of sleep.

However sometimes employers can be exempted from providing rest periods as set out in the 1997 Act, provided the employee is given equivalent compensatory rest. Exempted employees who lose out on their statutory rest entitlements should receive compensatory rest  as  soon as  possible  afterwards.  Section 4  of the  1997  Act  sets  out  the  exempted employees to whom this may apply (and it includes employees changing shifts) and section 6 provides guidance in respect of compensatory rest.

Section 6(2) of the 1997 Act provides applies to a number of circumstances, including where shift workers change shifts and cannot avail themselves of the statutory rest periods. In such circumstances, the employer must ensure that the employee has available to himself or herself:

• Equivalent compensatory rest; or
• Where  this  is  not  possible  for  objective  reasons,  appropriate  protection  of  the employee’s rights. It should be noted that this appropriate protection does not include monetary compensation or the provision of some other material benefit to the employee, other than the provision of such benefit as will improve physical conditions under which the employee works or amenities or services available to the employee while he is at work. Therefore an employee cannot be paid in lieu of compensatory rest.