Charity ordered to pay back money for ‘sleepover’ shifts

The Irish Wheelchair Association has been ordered to pay compensation to two workers who were not paid for the hours they were asleep during “sleepover” shifts.

A ‘sleepover’ shift occurs when an employee can sleep on their work premises during a shift, which remains classified as working time.

In a decision published this morning, the Workplace Relations Commission has upheld complaints taken by Patricia Fitzpatrick and Catherine Langton under Section 27 of the Organisation of Working Time Act and Section 6 of the Payment of Wages Act.

The women, who are both programme assistants with the charity, told the Commission they were rostered to work extra night shifts on top of their 39-hour weeks, with the work adding 18-21 hours a month. Ms Langton did six of these night shifts a month while Ms Fitzpatrick did seven.

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At meetings in February and March 2020, they said management told them there would be changes to their working hours after a Labour Court recommendation in 2014 to the HSE and trade unions concerning sleepover shift arrangements for care workers.

The plan was to change their contracts to say they now worked 44-45 hours a week and pay them the minimum wage for all hours worked between midnight and 8am.

Both Ms Fitzpatrick and Ms Langton said they were informed the changes had not been applied at the time because they were salaried and not paid hourly - which both disputed.

They both told the commission that they only learned at those meetings that they should have been paid for every hour they were on shift, even if they were asleep.

They also pointed out to their employer that they were getting a Sunday premium rate for daytime work on Sundays but not for the night-time payments after midnight, they told the commission.

They were told the Irish Wheelchair Association (IWA) paid a premium for hours spent working but “not for the hours [they were] asleep”.

Cathal McGreal BL, for the IWA, opened the Labour Court decision to the adjudicator and said his client had “adhered fully to the provisions… and did not consider that there were any payments due”.

In parallel decisions published this morning, adjudicator Breiffni O’Neill wrote that the Labour Court had indeed urged that “staff should be paid an hourly rate of in respect of each hour spent on sleepover in excess of 39 hours equal to the national minimum hourly rate” in its 2014 recommendation on care workers.

“It must be noted that this is only a Labour Court recommendation and is not therefore legally binding,” Mr O’Neill said, adding that the court itself had not sought to decide on any difference between the HSE and trade unions in interpreting European or Irish law on working time.

Mr O’Neill rejected the complaint under the Organisation of Working Time Act concerning the Sunday premium.

He found that there was no legal duty on the employer to pay a premium rate, as 24/7 working hours had been set out in the women’s contracts with “no additional remuneration”.

But he found that there had been a deficiency or non-payment, as the women were “only paid for five out of every eight hours” worked between midnight and 8am on night shifts.

He found Ms Langton’s pay was short €272.34 a month and Ms Fitzpatrick’s by €317.73.

Ms Langton had argued she had been underpaid in this way since 2016 and Ms Fitzpatrick said it had gone on since 2017.

However, Mr O’Neill said neither of the women had given reasonable cause for him to extend his jurisdiction beyond the statutory time limit of six months prior to the complaints being submitted in June 2020 and so he had to cap the claim in both cases.

He awarded €1,634.04 to Ms Langton and €1,906.38 to Ms Fitzpatrick.