Joanne Hyde

A recent decision of the High Court in the case of Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654 has brought much needed clarification to the issue of Sunday work, and just how far an employer needs to go in demonstrating that the requirement to work on Sundays has been taken into account in the determining an employee’s pay.

Background

The employees in this case were paid a flat hourly rate of €9.53, including for Sunday work, which at the time was in excess of the minimum wage. The employees’ contracts both contained a statement that their hourly rate of pay included “your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three)”.

The contracts did not specify what portion of the employees’ pay was referable to the fact that they were required to work on Sundays, and it was on this basis that the employees referred their complaints to the Rights Commissioner under the Organisation of Working Time Act 1997.

Legislation

Section 14(1) of the Act provides that unless the requirement to work on Sundays has been taken into account in determining the employee’s pay, the employee must be compensated by one of the following means:

1. Payment of an allowance
2. An increase in rate of pay
3. Paid time off, or
4. Some combination of two or more of the above

Employees’ Case

The employees argued that because their contracts did not identify what portion of their pay related to Sunday work, the requirement to work Sundays had not been taken into account in determining their pay, and they were therefore entitled to be compensated by one of the means set out in section 14(1) of the Act.

The employees’ complaints were upheld by the Rights Commissioner at first instance, and the employer was directed to pay the employees a premium of 30% for hours worked on Sundays during the period covered by their complaints.

That decision was appealed by the employer to the Labour Court, which affirmed the WRC’s initial finding and held that the employer had “failed to tender any evidence to the court in relation to what, if any, element of the complainant’s hourly rate of pay was specifically referable to her contractual obligation to work on Sundays.”

High Court Appeal

The employer appealed the determination of the Labour Court to the High Court, arguing that the Labour Court was wrong to find that the requirement to work on Sundays had not been taken into account in determining the employees’ pay in circumstances where the employees’ contracts expressly stated that it had been.

In allowing the employer’s appeal, the High Court held that the Labour Court had made an error of law in deciding that a clear statement in the contract of employment that the rate of pay included a Sunday premium could not be relied upon and that the employer was obliged to provide a breakdown of the Sunday work component of the employees’ pay.

While there was no evidence before the Court to rebut the wording of the contract, the High Court did note that “a statement in a contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive”. However, it went on to state an employee would have to “advance some credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer.” As an illustration of when this might arise, the High Court gave the example of an employee whose rate of pay had initially been greater than the minimum wage, but where at the time of their complaint was no longer above that level. In such circumstances, the Court commented, it would be difficult to argue that the rate of pay still reflected the requirement to work on a Sunday.

Impact of judgment

Recent decisions of the WRC and Labour Court had espoused the position that employers could not simply rely on a statement in the contract that the requirement to work Sundays had been taken into account in the determination of the employee’s pay, and instead needed to go further and identify the portion of the employee’s pay which represented a premium for having to work on a Sunday. This judgment confirms that there is no such requirement, and brings welcome clarification to the issue of pay for Sunday work.

However, as the High Court pointed out, the wording of the contract may not always be conclusive, and if the employee can provide credible evidence which contradicts the contract wording, the burden of proof will shift to the employer to show that the requirement to work on Sundays has genuinely been factored into the employee’s pay.

• Joanne Hyde is an employment partner at Eversheds Sutherland.