Complainant

Respondent

Anonymised Parties

A Residential Care Nurse

A Residential Care Provider

Representatives

Niall O'Sullivan Psychiatric Nurses Association (PNA)

Patrick Watters , Beauchamps

Act

Complaint/Dispute 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-00063231-001

01/05/2024

The Complainant is employed  as a Senior Staff Nurse in the Respondent residential care facility. They submitted their complaint  on  01/05/2024.

The Complainant contends that, in the course of his work in a community residential care setting, he was not afforded meaningful rest breaks since beginning his service in 2000. He maintains that breaks were frequently taken in circumstances where he remained responsible for residents and were liable to interruption, such that he was effectively still on duty. He further states that no suitable dedicated rest area was available and that concerns raised with management and through internal processes did not result in any substantive change to these arrangements.

The Respondent disputes the Complainant’s account and submits that his role afforded a level of autonomy which enabled him to take breaks flexibly during the working day. It maintains that appropriate facilities and amenities were available on site and that staff were encouraged to take and record breaks, with cover provided where necessary. While acknowledging that the nature of the service could give rise to occasional interruptions, the Respondent submits that compensatory arrangements were in place and that the Complainant was not denied rest. The Respondent also sets out that the complaint lacks specificity, and that it largely precedes the cognisable period.

Basis of the Complainant Case

The Complainant sets out in his submissions that whilst working in a community residence they had no rest breaks and no area to have rest breaks. They refer to section 12  of the Act that sets out rests and intervals at work. The claim that they have not received breaks that were uninterrupted since they started in 2000.

Background Issues

The Complainant states that in the early part of his career; while working on other  units, he had unpaid breaks and could leave the premises. In 2000, upon moving to current community residence, he was informed that staff were paid for breaks, and this required him to remain on site for breaks.

He contends that this resulted in never, since 2000,  having uninterrupted rest breaks, and this practice continues. In early 2023, after discussions with his trade union, he raised the issue with management in February 2023. The Director of Nursing (DON) allegedly stated that, as he was paid for breaks, she saw no issue.

The trade  union wrote to management in February 2023, asserting a breach of section 12  of the Act, which requires a 15-minute break after 4.5 hours and a 30-minute break after 6 hours.

Despite communications from management, the Complainant was still not facilitated with proper breaks, prompting a grievance under the HSE procedure in April 2023. The grievance process was protracted and ultimately did not uphold his complaint, citing the provision of a room deemed suitable for breaks.

The Complainant and his trade union dispute this finding , arguing the room provided is a small office frequently used by staff and service users, not a proper rest area. The Complainant  contends that the Respondent  failed to ensure uninterrupted breaks and references Labour Court decisions  in Antanas v Nolan Transport DWT1117 and Tribune Printing and Publishing Group v. Graphical Print and Media Union DWT046affirming that employers must actively ensure employees receive rest breaks and cannot discharge this duty by merely allowing breaks if desired.

Compensatory Rest

The Complainant  contends that there were unacceptable delays in processing their grievance, despite the serious nature of his allegations. They  highlight that under s25 of the Act, employers must maintain records demonstrating compliance, yet no such records exist in this case.

The union acknowledges that paid breaks within healthcare settings have long been standard practice, with staff remaining on-site and compensatory rest provided, if required. However, it argues that this practice was misinterpreted by the employer, resulting in the Complainant being unable to take uninterrupted breaks since 2000. The Complainant  asserts that their lack of awareness of rights should not be held against them, noting similar gaps in understanding among management, as evidenced during meetings in February 2023.

The Union further criticizes the service for failing to implement measures to ensure compliance with the Act, particularly given the demanding nature of caring for individuals with intellectual disabilities, which requires robust protections for staff health and welfare

Factors for Consideration

The Complainant  urges consideration of the claim that the Complainant  was not afforded proper rest breaks in compliance with the Act  and  references the ECJ decision in Von Colson & Kamann v Land Nordrhein-Westfalen (1984) ECR 1891, which established that sanctions must act as a deterrent against future breaches.

Ongoing Breaches

The Union contends there is an ongoing breach of the Act and cites WRC decisions awarding compensation for similar failures, including, Duffy v Camphill Communities of Ireland ( ADJ-00033463), where the Adjudicator awarded €3,000 for failure to provide breaks in a care setting;  Sehleanu v  Cordelia Foods Limited (ADJ-00031563) which awarded  €7,500 for breaches of section 12 , and Deevy v HSE (ADJ-00046783) were €11,203 was awarded  where no records were maintained.

The Respondent   also ask that the Commission recommend that the HSE engage with unions to develop a standard operating procedure for rest breaks to ensure compliance going forward.

Additional Submissions from the Complainant.

Lack of Working Breaks

The Complainant sets  that he was not afforded proper rest breaks under section 12  of the Act   while working in a residential care setting. He claims that breaks were taken in the presence of residents, leaving him effectively “on call” and unable to rest.  It is the argument of the Complainant that this arrangement does not meet the statutory definition of a rest break.

Failure of the Employer to Maintain Records

The Employer failed to maintain records of working time and breaks as required under s25(4) of the Act. Responsibility for taking breaks was placed on the Complainant without a structured system or monitoring. Amenities cited by the employer (e.g., shared kitchen, meals with residents) were not suitable for uninterrupted rest.

The Complainant argues that the circumstances closely mirror the Deevey case where the defence offered by the Respondent was the exemption under the act. 

Complainant’s Summary

Breaks taken alongside residents are not genuine rest periods and no compensatory rest or proper facilities are provided. It is the Complainant case that the Respondent  failed to comply with statutory obligations and exemptions under S.I. 21/1998.

Relief Sought

The Complainant requests a  finding that the complaint is well-founded and asks for compensation for the same is  aligned with WRC precedents and ECJ principles (Von Colson case) to act as a deterrent.

Further the Complainant asks for a recommendation for the HSE to implement a standard operating procedure for rest breaks.

Background to the Respondent Case

The Respondent rejects the Complainant's claim. The Respondent sets out that the Complainant is employed in an autonomous role where he is free to determine his own rest periods at any time with an enlarged opportunity for compensatory rest to include free meals and beverages supplied by the Respondent in addition to the facilities of which he may avail during his working day.

Cognisable Period

The Respondent set out s41(6) of the Workplace Relations Act 2015 that there is a serious question over the cognisable period. The Complaint was received on the 1st of May 2024 and the cognisable period is, there from 2nd of November 2023

The Complainant alleges under the 1997 Act that he does not receive breaks. He claims this has been the case since starting work at the Respondent facility  in 2000. The Respondent emphasises that no specific dates or instances are provided in the complaint.

The Respondent’s rejects the claim, asserting the Complainant has always received statutory breaks, that the Complainant works in an autonomous role, allowing him to take rest periods at his discretion and such opportunities arise frequently in the workplace given the nature of its residents.

Rest, Intervals  and Autonomy

It is the case of the Respondent  that, given the nature of the role, the Complainant has to be responsible for organising their work to ensure appropriate breaks are taken.

 It is further contended that the Complainant has adequate opportunities to take breaks during shifts, which regularly include substantial periods of inactivity that do not constitute working time.

The Respondent sets out  that this position has been consistently communicated to the Complainant and senior staff, with reliance placed on meeting records and internal communications referenced at Appendices 2 to 6 of the Respondent submissions, which reiterate this responsibility.

Appendix 2 Staff Meeting 03/05/2023

Appendix 2 is a note of a staff meeting where the Complainant was clearly present on the 03/05/2023 at 10 am. Staff breaks were an agenda item and it was emphasised that staff were entitled to take their breaks, encouraged to do so in line the directive. This  was to be documented in the communication book / back of staff roster and was the responsibility of the SN. Further if staff had concerns, they should contact the CNM.

Appendix 3 Staff Meeting Minutes 29/2/2024 and 23/10/2024

Appendix 3 refers to a staff meeting where the Complainant was in attendance and lunches and breaks were addressed and what to do in the event of broken break times. At item 10 it was emphasised that untaken breaks be recorded.

Appendix 4 Email 20/08/2024

At appendix 4 an email was sent to the Complainant  by MC, copying DMcK and MH on the matter of staff breaks emphasising the importance of staff breaks:

“just a reminder following my visit and our conversation ….. on 16th August 2024 regarding the importance of all staff receiving their rest break. Senior staff on duty should be recording same as per regulations and recent union representation on this matter. I note you reported that it was a cultural change and that this would take time however, this information has been communicated to all staff over the course of last 18 months.”

Appendix 5 Staff Meeting Minutes 27/08/2024

 At appendix  5 the matter is addressed again in a staff meeting, where the Complainant was not  in attendance. This set out that where staff wished to use the office it was available on notice to the SN and the times of breaks were set out.

Appendix 6 Email Trail - 14th to 15th November 2024

At  appendix 6 is a trail  of communication setting out the Complainant was not recording his breaks, also noting that staff have been reminded consistently to take and record breaks

Organisation of Working Time Act

The Respondent, for the purposes of responding to the claim, acknowledged that section 12 of the Organisation of Working Time Act, 1997 sets out the various rest and intervals at work entitlements.

Notwithstanding the Respondent's reliance on the general exemption, the Respondent submits that during the cognisable period the Complainant reported to JW who is satisfied that the Complainant availed of his statutory entitlements to break periods.

The Complainant’s case centres on being required, as a Senior Staff Nurse, to take breaks on site and remain available in exceptional circumstances, rather than on a total denial of breaks.

The Respondent submits that this arrangement falls within the exemptions provided for by S.I. No. 21/1998, made under sections 4(3) and (4) of the 1997 Act, which disapplies s 12 for certain caring roles subject to compensatory rest and adequate facilities.

As the Complainant is wholly or mainly engaged in the care of residents in a residential setting, the Respondent contends that the general exemption applies and relies on Jackie Deevy v HSE (ADJ‑00046783) in support of this position.

General Exemptions and Autonomy

The Respondent accepts that the general exemption in S.I. No. 21/1998 is qualified by an obligation to provide rest and breaks that may reasonably be regarded as equivalent, having due regard to employee health, safety and comfort. It denies the Complainant’s assertion that no suitable break facilities exist or that breaks were disregarded because the Complainant was paid.

The Respondent maintains that, given the Complainant’s autonomous role, breaks can be taken flexibly during the shift, with operational cover provided by HCAs and staggered breaks among staff.

While the Complainant is required to remain on site during breaks, the Respondent submits that compensatory rest is provided through adequate facilities and enhanced amenities, including meals and beverages supplied at the Respondent’s expense, and contends that these arrangements are capable of being regarded as equivalent to, and more beneficial than, the statutory rest breaks.

Occasional Interruption to Breaks

The Respondent acknowledges that, on exceptional occasions, the Complainant’s breaks may be interrupted. In such circumstances, the Respondent submits that breaks may be resumed or extended at the Complainant’s discretion, or alternative compensatory rest may be arranged with management where resumption is not possible. The Respondent maintains that this practice is well understood by staff and was repeatedly communicated during the cognisable period

The Respondent submits that the Directive recognises that uninterrupted rest breaks cannot always be guaranteed in certain activities. Reliance is placed on Martin v Southern Health and Social Care Trust [2010] I.R.L.R. 1048, where the Northern Ireland Court of Appeal held that a rest break which may be interrupted in exceptional circumstances remains a rest break and is conceptually distinct from on‑call duty, rejecting the argument that such breaks should be treated as working time

Legal Submissions

The Complainant alleges under s27 of the Organisation of Working Time Act 1997 that he does not receive breaks.

The complaint was lodged with the Commission on 1 May 2024, and the cognisable period for consideration is 2 November 2023 to 1 May 2024. The Respondent disputes the claim, asserting that the Complainant has always had access to statutory breaks and compensatory rest within his  autonomous role.

The Complainant alleges under s27 of 1997 Act  that he does not receive breaks. The Respondent disputes this, asserting that the Complainant’s role is autonomous and provides adequate opportunity for rest, including periods of inactivity that do not constitute working time.

The Respondent refers to section 12  of the Organisation of Working Time Act 1997, which requires a 15-minute break after 4.5 hours and a 30-minute break after 6 hours, and to s2(1) defining “working time” as time spent performing duties at the employer’s disposal. The Respondent maintains that the Complainant availed of his statutory entitlements during the cognisable period offered  oral evidence to that effect.

The Respondent rejects the  Complainant allegation of  breaches of s 12 Act, claiming “No Rest Breaks and No Area to Have Rest Breaks.” The Respondent argues that the complaint also challenges the concept of compensatory rest under the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. 21/1998).

These regulations exempt certain sectors, including caring environments, from strict application of section 12 of the Act, provided compensatory rest and adequate facilities are offered to protect employee health and safety.

The Respondent submits that the Complainant, as a Senior Staff Nurse in a residential care setting, falls within this exemption and cites Regulations 4 and 5 of S.I. 21/1998, which require equivalent rest and breaks and consideration of health and safety. Reference is also made to WRC case law supporting the application of these exemptions in similar environments in Jackie Deevy v HSE [ADJ-00046783], as exhibited by the Complainant, which supported the application of this general exemption within a comparable working environment and the Respondent restates its application to this complaint.

The Respondent asserts that while exemptions under Regulation 3 of the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. 21/1998) apply to the Complainant’s role in a caring environment, these exemptions are qualified by Regulations 4 and 5, which require employers to provide breaks that can reasonably be regarded as equivalent to statutory rest periods and to ensure health, safety, and comfort. Specifically, Regulation 4 obliges employers to offer compensatory rest where statutory breaks under Ss 11–13 of the Act does not apply, and Regulation 5 prohibits requiring employees to work shifts longer than six hours without a break of a duration determined with due regard to workplace safety and risk prevention. The Respondent maintains that these obligations were met during the cognisable period.

The Respondent denies any suggestion that there was no suitable place for breaks at the residential facility or that payment negated the need for rest breaks, as alleged by the Complainant.

They assert  that the Complainant’s autonomous role allows breaks to be taken at any time during shifts, with coverage provided by HCAs and staff are encouraged to stagger breaks to avoid overlap.

While the Complainant is required to remain on-site during breaks, the Respondent submits that compensatory rest is facilitated through adequate workplace amenities, including free meals and beverages, which it argues are more beneficial than statutory breaks. The Respondent acknowledges that breaks may occasionally be interrupted but states these can be resumed or extended at the Complainant’s discretion, or alternative compensatory rest can be arranged with management.

The Respondent maintains that staff were repeatedly reminded of these practices during the cognisable period.

The Respondent notes that the Directive acknowledges that uninterrupted rest breaks may not always be possible in certain roles. It cites Martin v Southern Health and Social Care Trust [2010] I.R.L.R. 1048, where the court held that breaks subject to interruption in exceptional circumstances are distinct from on-call duty.

Further reliance is placed on Stasaitis v Noonan Services Group Ltd [2014] E.L.R. 173, where the Labour Court found that arrangements allowing breaks during periods of inactivity, supported by amenities, either met statutory requirements under section 12   or amounted to equivalent compensatory rest under Regulation 4 of S.I. 21/1998.

The Respondent argues that the Complainant enjoys similar arrangements, including discretion over break timing, access to meals, refreshments, and amenities such as television, Wi-Fi, and reading material, and is remunerated for breaks. It submits that these provisions satisfy the criteria of equivalence and compensation required under the Act and the exemptions provided by S.I. 21/1998.

The Respondent acknowledges its obligation under s25(1) of the 1997 Act to maintain records demonstrating compliance. Under s25(4), where such records are not kept, the burden of proving compliance shifts to the employer.

The Respondent cites Jakonis Antanas v Nolan Transport (DWT1117), where the Labour Court clarified that while the legal burden normally rests with the complainant, s 25(4) creates a rebuttable presumption of non-compliance if statutory records are absent.

Following Nolan, the Complainant must first discharge an evidential burden by presenting sufficient particulars to establish a stateable case. Once this is done, the employer must produce records showing compliance. However, the evidential burden remains with the Complainant to present sufficient particulars of non-compliance.

The Respondent cites ISS Limited v Zhivko Mitsov (DWT1159) and ISS Ireland v Vyara Gfenecheva (DWT1157), where the Labour Court held that claimants must adduce evidence to support a stateable case before the burden shifts. In this instance, the Complainant’s submissions are inconsistent—initially alleging “no rest breaks and no area to have rest breaks,” later claiming he was “never able to get uninterrupted rest breaks.” The only evidence provided is an email listing manager, which the Respondent investigated and confirmed breaks were afforded.

The Respondent argues that the Complainant’s general allegation of being unable to take uninterrupted breaks since 2000 lacks specificity, ignores support structures for coverage, and fails to meet the evidential threshold outlined in Jakonis Antanas v Nolan Transport (DWT1117). It contends the dispute relates to perceived interruptions rather than an absence of breaks and that compensatory rest under S.I. 21/1998 was provided.

In their conclusion the Respondent submits that it has complied fully with its obligations under the Organisation of Working Time Act 1997, including the provision of statutory or equivalent compensatory rest as permitted under S.I. 21/1998. It argues that the Complainant has failed to provide sufficient evidence to establish a stateable case of non-compliance and that his allegations are unsupported and inconsistent.

The Respondent maintains that established procedures were followed, adequate breaks and amenities were provided, and the Complainant was not disadvantaged in any way. Accordingly, the Respondent respectfully requests that the Commission dismiss the complaint and find in its favour.

Background

The services delivered by the Respondent are supported residential care accommodation. The model of service delivery in the accommodation is designed to be as close to “home” as possible.

 In all of these services it is standard that staff are paid for all hours worked in the home inclusive of work breaks. Staff  receive their meals and, in the facility, and commonly dine with the residents throughout the day. The ethos of decongregation is, therefore, upheld with the residents' needs respected and supported instead of separation of staff from the residents.

The Complainant has brought a complaint under section 27 of the Organisation of Working Time Act 1997, contending that since commencing employment in or around 2000 he has not been provided with statutory rest breaks, including uninterrupted breaks, as required under the Act.

The Respondent asserts that the Complainant has access to support and coverage to take breaks during all shifts and notes that staff are paid for all hours worked, including breaks, and share meals with residents to promote inclusiveness in line with the service’s person-centred care model.

Cognisable Period

The Respondent relies on section 41(6) of the Workplace Relations Act 2015 and sets out  there was an issue as to the applicable cognisable period. The complaint was received by the Commission on 1st  May 2024. Accordingly, the cognisable period extends from 2 November 2023.

The Complainant submits that their lack of awareness of their statutory entitlements prior to the cognisable date should not be held against them, particularly where the Respondent had previously misinterpreted the legislation in respect of compensatory rest.

It is well established that ignorance of the law does not, of itself, excuse either party, and both are accordingly presumed to be aware of their statutory obligations

The jurisdiction of the Commission is expressly circumscribed by statute and is confined to matters arising within the cognisable period. Acts or omissions occurring outside that period fall outside its jurisdiction and may be considered only, where relevant, as background or contextual material; they do not constitute freestanding breaches capable of giving rise to redress.

On that basis, I have no jurisdiction to make findings in respect of events alleged to have occurred prior to the cognisable period. Furthermore, I have not been presented with cogent evidence establishing that the alleged breaches constituted a continuous or ongoing contravention extending into the cognisable period.

Organisation of Working Time (General Exemptions) Regulations 1998

The Complainant alleges breaches of section 12  of the Organisation of Working Time Act 1997, claiming “No Rest Breaks and No Area to Have Rest Breaks.” The Respondent argues that the complaint also challenges the concept of compensatory rest under the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. 21/1998).

These regulations exempt certain sectors, including caring environments, from the strict application of section 12 of  the Act. The Respondent argues that they have provided compensatory rest and adequate facilities to protect employee health and safety. The Respondent submits that the Complainant, as a Senior Staff Nurse in a residential care setting, falls within this exemption and cites Regulations 4 and 5 of S.I. 21/1998, which require equivalent rest and breaks and consideration of health and safety.

Reference is also made to WRC case law supporting the application of these exemptions in similar environments in Jackie Deevy v HSE [ADJ-00046783], as cited by the parties.

I am satisfied by the evidence, the statutory framework and the  reasoning in Deevey, supports the application of this general exemption to the Complainant  working environment.

Historical Recording of Working Time

It is clear that, historically, the Respondent has failed to instruct on the recording of the appropriate data. More recently, including the cognisable period of the current complaint,  the Respondent has instituted a method of doing so.

The Complainant submits that since starting in the facility in 2000 they have not been afforded uninterrupted rest breaks or a suitable rest area, having been informed that paid breaks required remaining on site. This practice is alleged to continue, and the issue was raised with management in early 2023, with the Director of Nursing indicating that paid breaks posed no difficulty.

The union wrote in February 2023 alleging a breach of section 12 of the Organisation of Working Time Act 1997, and a formal grievance was lodged in April 2023 but not upheld, management relying on the provision of a room said to be suitable for breaks. The Complainant disputes this, asserting that it is a shared office and not a proper rest facility, and raise concerns regarding delays in the grievance process and the absence of compliance records contrary to section 25.

Office Rest Facility & Sharing of Breaks with Residents

Following the grievance raised, the Respondent relied upon the provision of a room said to be suitable for breaks. The Complainant disputes this, asserting that it is a shared office and not a proper rest facility, and raise concerns regarding delays in the grievance process and the absence of compliance records contrary to section 25.

From the parties’ submissions it appears that the reason the Complainant complains of  not having received breaks is because there is no break room provided where they might escape the duties of the role for a period of time.

The  evidence given to me by the Complainant was that there were no facilities to take such breaks and  that an office would have to be vacated and the phone removed for a worker to have an undisturbed break. Evidence was given that, in practice, most staff took their breaks on site and commonly shared those breaks with service users, having regard to the residential nature of the care setting. 

The work in question involves the residential care of elderly residents. Evidence indicated that residents exercised varying degrees of independence: some attended activities outside the unit, some remained in their rooms, while others spent time in communal areas with staff.

The  CNM who had previously managed the unit described a generally convivial atmosphere, typical of such a residential care setting, in which staff and residents interact informally and on a frequent basis. The residents were described as having a significant degree of autonomy in their daily lives and participating, to varying extents, in activities both within and outside the unit.

The provision of the office is central to the Respondent case and evidence was given as to the availability of the same for the taking of breaks  where the phone could be removed and it be set aside for that purpose. It was given in evidence and not denied, that it was used in such a manner by another staff member who wished to disengage from the residents for their breaks. No significant evidence was put to me demonstrate the suitability or otherwise of the same and as it was described to me appeared satisfactory.

Compensatory Rest

The Respondent sets out that there is ample opportunity to take breaks, albeit not at a specific time, such breaks come after seeing to the needs of the Residents in terms of personal care and food times. It was set out and not disagreed that the unit has a kitchen much like any family home and staff share meals with the residents as much as part of the care and normality the service seeks to provide.

Much was made of the resources available to the staff in this in terms of free meals, TV use, internet access and other matters that might be considered recreational.  I do not find this a strong argument for and intentional restricting of  breaks on an ongoing basis, which is not the argument of either party. However, I am convinced on the oral evidence that although a structured break is not possible to set out, that there appears to be  ample opportunity to take such breaks in the course of the day; what remains  of concern is how these are recorded. 

I note that the Respondent’s documentary evidence, as it pertains to the cognisable period, provides that staff are entitled to compensatory rest and are required to record such rest and to notify management where breaks are missed. The evidence given to me in its entirety is that the Complainant did not engage with this recording process saying under affirmation that he would not because it was a tick box exercise.

Role Autonomy

The Respondent  has set out that the Complainant  has autonomy to take their breaks whenever they wish and this was the evidence of the CNMs. However, section 12  is clear that the employer must ensure breaks are taken under this section,  not merely to allow it to happen even where the complainant may have had a high degree and control over their own schedule without direct supervision.

The evidence given  is the nature of the work done by the complainant means that they have a high degree of autonomy to avail of what seemed to be multiple opportunities to take breaks in the standard workday. However, whilst this is relevant and persuasive  it is not determinative.

From the evidence given to me it is clear that it is standard practice for staff in the Complainant’s position to arrange their day as they pleased. Much was made of the lack of a break room, but the actual complaint is that they did not get rest breaks for the entirety of their employment, which in and of itself lacks any evidential basis.

In examining this issue, I have to be of the view that such opportunities to discharge the breaks were feasible and possible. I do not see how the Complainant  was on call to such an extent, from the direct evidence of the CNMs, that such breaks could not be taken.

I have not heard anything that would put me in mind that the workload was such, and the staffing so short in terms of HCAs,  that breaks would not be feasible in that time.

I  am mindful of the Complainant’s role and its autonomy, and I do not find it credible that the Complainant was on call for every minute of the day. I am swayed by the evidence of the Respondent witnesses that the role, having  done it themselves , has a great deal of latitude for the taking of compensatory rest breaks. I accept fully that the Complainant has enjoyed autonomy in the role, but the need to be in compliance with the record keeping where no records were kept at all is a concern.

It is also quite clear from the oral and documentary evidence the  Complainant was on notice of the need to take breaks,  and to report missing breaks to management. It is alarming that the Complainant was not cooperating with this management direction.

Paid On-Site Breaks

The Respondent trade union  accepted that paid, on‑site breaks are longstanding in healthcare but contends this was misapplied, resulting in the denial of uninterrupted breaks since 2000. The Respondent trade union criticises the failure to implement effective compliance measures and urges consideration of both grievance delays and the alleged ongoing breach of statutory rest break obligations.

Relying on Von Colson & Kamann v Land Nordrhein‑Westfalen, the Union contends that sanctions must be effective and deterrent, refers to WRC awards in comparable cases, and recommends the development of a standard operating procedure on rest breaks in consultation with unions.

 It is important that  I note that this aspect of the Complainant case is being presented to me in an individual complaint but is clearly a collective matter and it is not appropriate for me to be asked to make such a recommendation as part of the Complaint before me.

I note the circumstances as being contextual, but not as a basis for institutional remedies and I further note the argument regarding the delay in managing the grievance brought

Rest Intervals

It is the case of the Respondent  that, given the autonomous nature of the role, the Complainant is responsible for organising their work to ensure appropriate breaks are taken. It is further contended that the Complainant has adequate opportunities to take breaks during shifts, which appears to  regularly include substantial periods of inactivity that do not constitute working time.

It is set  out  that this position has been consistently communicated to the Complainant and other staff, with reliance placed on meeting records and internal communications referenced at Appendices 2 to 6 of the Respondent submissions, which reiterate this responsibility.

Appendices 2 to 6 demonstrate that the Complainant was repeatedly reminded—through staff meetings and direct email correspondence—of his entitlement to take breaks and his responsibility to record taken or missed breaks, including where breaks were interrupted. The correspondence further shows that the Complainant was on clear notice of the process for recording missed breaks and failed to cooperate with the Respondent in complying with those procedures.

Current Method of Recording Breaks Within the Cognisable Period

The Respondent has instituted recording of breaks and instructed at various staff meetings; attested to in the documentary and oral evidence.  I am concerned greatly  by the Complainant bringing a complaint of not having breaks and then refusing to comply with the method of collecting  the relevant data. In oral evidence it was set out by  a Respondent witness that the Complainant was not filling in the sheets to record missed breaks. The Complainant did not deny this and instead said he would not fill this in as it was  “a tick box exercise”. I have referred to this above and it bears repeating.

Obligation to Keep Records and Evidential Burdens

In support of its position, the Respondent relies on Jakonis Antanas v Nolan Transport (DWT1117), where  the Labour Court clarified the evidential burden under the 1997 Act.

The Court held that the initial burden rests with the complainant to establish facts capable of giving rise to an inference of a contravention. Once such a prima facie case is made, the evidential burden shifts to the employer to rebut that inference, typically by reference to statutory records or other cogent evidence demonstrating compliance with the Act. The Respondent claims this initial inference is not satisfactory.

The Respondent cites ISS Limited v Zhivko Mitsov, DWT 115 where the Labour Court clarified the allocation of the evidential and legal burden where working time records are deficient.

The Complainant  bears the initial evidential burden of establishing  a stateable case of non-compliance, that the time allocated did not permit them to take breaks, credible evidence to that effect is sufficient to discharge that burden before it  then properly shifts to the Respondent to prove, on balance of probabilities, that breaks were taken. The Respondent  makes a point arising from Nolan, that there is a need for the Complainant to establish facts to raise an inference. I find that this has not been discharged and Complainant has failed to establish sufficient evidence for a stateable case of non-compliance.

 It is clear that there are no records for the Complainant, but he is clearly under notice on several occasions that records are to be kept and contraventions notified to management. He has, by his own admission at the hearing refused to do so and this is clear from the documentary evidence. In such circumstances the evidential burden has not shifted to the Respondent.

Nolan Transport v Jakonis Antanas

The 2011 Labour Court decision in Nolan is cited by the parties. In that case the failure was not disputed by theRespondent as it is in the within case where there was very credible evidence of the senior nurses who had worked in the unit that there was ample time to avail of break whereas in Nolan a  case of an international truck driver there was certainly a positive duty on a Respondent to ensure breaks were taken and the Complainant in that case  was not successful under section 12 and this is pertinent to the within case.

Deevey v HSE ADJ-00046783

The Complainant also cites Deevey v HSE ADJ-00046783 in a similar case where the Complainant like the current complaint had to take their breaks to fit in the needs of the client group.

In Deevy, the Adjudication Officer accepted that the workplace was a residential care setting falling within the exemptions in S.I. No. 21/1998.

“3. (1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.”

From 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, 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, includes 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.”

However, the complaint  in that case succeeded because the employer failed to provide a reliable and suitable place for breaks, with the complainant limited to using only the kitchen in what was  a high‑dependency unit.

The facts of the present case are materially different. Evidence was given that an office is available and can be vacated for break purposes, and this option is actively used by another staff member.

In addition, the care environment here was described as slower‑paced and more “home‑like”, distinguishing it from the high‑dependency setting in Deevy. Additionally, unlike Deevey the present Respondent attempted in the cognisable period to record breaks and missed breaks which the Complainant did not cooperate with.

Applying Deevey to the current case it could be said that taking breaks with residents does not meet  the strict requirements of the Act, it should also be  acknowledged that if staff consider time spent with residents to constitute a break, it may be treated as such. In the current case where the Complainant does not view it as such  an  alternative provision must be made. In the present case, the office serves as that alternative, and there is no convincing evidence that it is unsuitable or unavailable.

On the basis of the oral evidence, and taking account of current demand, the amenities provided are adequate, and the Respondent is entitled to rely on the exemption from the strict scheduling of breaks under S.I. No. 21/1998.

Gallagher v HSE North-West (ADJ-00051093)

Gallagher is another example of what appears to be a high support unit where it was not possible to avail of a compensatory break. It is clear from that case that there was no rest available and is distinct, in that sense, from the evidence in the  current issue. In the current issue the type of residential care is substantially different and not of the high support nature, not to suggest that it is not demanding, but it is not high support.

S.I. 21/1998 (General Exemptions)

The exemption recognises that, in high‑support or residential care environments uninterrupted statutory breaks may not always be feasible, and operational demands may require flexibility in how rest is taken.

Where the exemption applies, the employer must instead ensure equivalent or compensatory rest, and ensure that such rest is genuine, meaning the worker can disengage from active duties.

The exemption therefore modifies how rest may be provided but does not remove the obligation to provide rest altogether, nor does it remove the obligation of the employer to record breaks, nor does it remove the  responsibility of the employee to cooperate in the recording of the same for their own health and safety.

The Statutory Instrument does not define exempted organisations but identifies categories of activities and work that are exempted and the exemption is activity based. Such work is contained in the schedule, that includes both the continuity of services and  “the provision of services relating to the reception, treatment, or care of persons in a residential institution, hospital, or similar establishment”.

Following the case law, I am convinced that the work of the Complainant comes under this exemption.

Specificity of the Complaint

The  Complainant made his complaint  under Section 27 of the 1997 Act that he does not receive breaks since starting work at the Respondent facility in 2000.

The Respondent makes as case that there are no specific dates or instances provided. It is the case of the Respondent that the complaint lacks specificity in this regard, and the Respondent referred to the established precedent of the Labour Court regarding the evidential burden in similar cases. In  Antanas -v- Nolan Transport DWT1117 the court found:

 “The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut…”

The same issue arose in Mitsov,  where the Court determined that where an employer fails to keep statutory records, the claimants could meet their initial burden by giving credible evidence that their work schedules left no opportunity for breaks. Once that evidence is accepted, the burden shifts to the respondent to prove that breaks were in fact taken. In short, the requirement to maintain records does not create a strict liability on the Respondent, especially so where the evidence is the Complainant has not  cooperated with the recording obligation.

Following the case law, which I must, I  cannot find that the Complainant has presented his complaint with the degree of specificity required to shift the burden to the Respondent.

Conclusion

The Respondent outlined efforts made to record breaks, and evidence was given that this occurred on a number of occasions. There is also an obligation on employees to cooperate with reasonable measures introduced for this purpose.

On the evidence before me, I am satisfied that the Complainant did not engage with those measures. I do note, however, that the Respondent might reasonably have taken further steps to address this difficulty directly with the Complainant in order to secure proper compliance.

I have considered all of the written submissions and oral evidence. I must first determine whether the Complainant has discharged the initial evidential burden necessary to establish a stateable claim. The contention that the Complainant has never received  an uninterrupted break at any time since 2000 is not made out on the evidence before me.

In assessing this issue, I also note that the Complainant was represented by a well‑established trade union and therefore had access to experienced advice and resources to raise concerns, particularise complaints, and pursue matters formally during the cognisable period, had the alleged breaches occurred, especially concerns about the data collection of the Respondent on rest breaks.

In those circumstances, I would have expected some evidence that the issue was raised formally and on an ongoing basis with the Respondent. I would also have expected reference to specific dates falling within the cognisable period, rather than broad and generalised assertions unsupported by particularised instances, contemporaneous records, or corroborative evidence.

The Complainant has not provided sufficiently detailed or convincing evidence as to when the alleged breaches occurred during the period under consideration. I also found the Complainant’s evidence to be inconsistent in material respects and lacking in persuasive force when assessed against the totality of the evidence. In this regard, I am mindful of the Complainant’s own oral evidence that he did not engage with the Respondent’s attempts to record working time during the cognisable period.

Consistent with the Labour Court decision in Nolan and Mitsov , the Act does not create a strict liability on the Respondent and where a complainant fails to adduce credible and sufficiently particularised evidence, the evidential burden does not shift to the Respondent to rebut the claim.

While allegations of statutory non‑compliance must be examined with care, they must nonetheless be supported by cogent evidence. As that threshold has not been met in the present case, I find that the complaint has not been established on the balance of probabilities and is not well‑founded.

For the reasons set out above I find that the complaint has not been established on the balance of probabilities and is not well‑founded.

Stateable case, compensatory rest,  residential care setting, autonomy of role, recording of working time, cooperation with employer measures, cognisable period,  specificity of complaint,