Sunday Working and the Law

Therefore, employees who work on a Sunday will be entitled to be compensated by a combination of two or more of the above means provided that the fact that the employee was required to work on a Sunday was not already taken into account in determining their pay. If the requirement to work on a Sunday has been taken into account in determining the employees rate of pay then employees are not entitled to additional compensation for working on a Sunday.
The legislation states that if an employee is required to work on a Sunday the compensation for working on a Sunday should be “reasonable having regard to all of the circumstances”.

What is therefore viewed as reasonable
compensation for Sunday working?

An employee is entitled to the premium payment for Sunday working payable to a comparable employee in a collective agreement in force in a similar industry or sector. This means that the Sunday premium, if not already paid, will be equivalent to the closest applicable collective agreement which applies to identical or similar work under similar circumstances and which provides for a Sunday premium.

While there is no legislation that dictates what the amount or % of Sunday premium should be, the Labour Court has looked at collective agreements in force for comparable workers and has often held that a reasonable premium for Sunday working to be 25% to 33% uplift in an hourly rate of pay. However, each case will be decided on its own facts and specific circumstances. Employers therefore have a level of discretion when deciding what is reasonable when it comes to compensating employees for working on a Sunday.

If an employee is required to work on a Sunday should this be expressly stated in the contract of employment?

Under the Terms of Employment (Information) Acts 1994 to 2014, employers are required to set out any terms or conditions relating to hours of work. Employers are also required to set out the number of hours which the employer reasonably expects the employee to work per normal working day and per normal working week as per the Employment Miscellaneous Provisions Act 2018.

Where an employee is required to work on a Sunday then this should be clearly set out in the contract of employment. The contract should also clearly state the compensation employees will receive for working on a Sunday provided that the fact that the employee is required to work on a Sunday has not already been taken into account in determining the employees pay.

If it has been taken into account in determining the
employees pay, does the contract of employment have to state what proportion or part of pay specifically relates to Sunday working?

The High Court in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova, 1 [2019] IEHC 654 dealt extensively with Section 14 of the 1997 Act. While it was noted by the Court there is no requirement to expressly set out the calculation for Sunday premium in the contract, it must be noted clearly and unambiguously that compensation is paid.
The High Court therefore found an express statement in a contract of employment that working on Sundays was taken into account in the setting of an employee’s pay discharged that employer’s Sunday work obligation. It held that Section 3(1)(g) of the Terms of Employment (Information) Act 1994 does not require an employer to identify in their contracts of employment precisely what element of pay is attributable to the obligation to work on Sundays.

However, it did state that if an employee is alleging that they had not received their Sunday work entitlement despite it being expressly stated in the employment contract then they must provide “credible evidence to rebut the express provision…”. The example which the High Court gave was where the minimum wage increased but the employees hourly rate did not. In circumstances such as these the High Court held that it would be “difficult to see how the rate of pay could still be said to reflect the requirement to work on a Sunday.”

An employee could take a claim to the Workplace Relations Commission for breach of the Act.
Section 27 (3) of the Organisation of Working Time Act 1997 sets out the provision for redress. An adjudication officer can do one or more of the following:

• declare that the complaint was or was not well founded
• require the Company to comply with section 14
• and/or require the Company to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding two years’ remuneration in respect of the employee’s employment.

This article was written by Catherine Monahan, Senior HR Consultant at Action HR Services

DISCLAIMER:
The information in this article is provided as part of the Action HR Services Blog. Specific queries should be directed to a member of the Action HR Services Team and it is recommended that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct on 26th July 2024.