In our second bulletin on flexible working, we consider the importance of complying with working-time legislation when embracing innovative ways of working.
Working Time and Flexible Working
When putting in place flexible working arrangements (“FWAs”), employers should consider how they will comply with their obligations under the Organisation of Working Time Act 1997 (“OWTA”).
As a reminder, OWTA provides for a 48-hour working week, rest periods between finishing one shift and starting the next and rest breaks amongst various other rights. Employers need to ensure that employees who may be working remotely or at irregular times are still afforded these rights. This can be challenging, particularly if line managers and their reports are rarely in the same physical location at the same time. An employer will need a strategy for supervising the operation of FWAs. As part of this, line managers should be briefed on the role that they can play in monitoring working time.
Employers are also required by OWTA to keep records of employees’ working time, including their rest breaks unless an exemption applies. A failure to do so will result in the employer bearing the burden of proof if an employee complains to the Workplace Relations Commission that they have been deprived of their rights. It will be difficult to discharge this burden in the absence of records. A failure can also lead to a prosecution.
In May this year, attention was drawn to the need to keep working-time records by the ruling of the CJEU in the Spanish case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18). The Court said that EU Member States must require employers to have an “objective, reliable and accessible” system in place to measure the daily working time of employees. Otherwise it is nigh on impossible to determine whether an employee’s rights are being respected. The Court also emphasised that the right to maximum working hours and minimum rest periods are essential for the protection of health and safety at work.
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