If you work on Sunday you are entitled to be paid a premium pursuant to section 14 of the Organisation of Working Time Act 1997,
14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
( d) by a combination of two or more of the means referred to in the preceding paragraphs.
Paid time off or an allowance
You will note from section 14 of the Organisation of Working Time Act 1997 above that the Sunday Premium can be in the form of paid time off or the payment of an allowance of such amount as is reasonable in the circumstances.
Increased rate of pay
You will see that no specific amount is set out in the act for the rate of pay, it refers to ‘what is reasonable having regard to all the circumstances’. This leaves the Sunday Premium rate of pay open to negotiation between the parties and if agreement cannot be reached there may be a dispute referred to the WRC or Labour Court.
Labour Court guidance
It is to the Labour Court that we turn for guidance as to what is considered to be ‘reasonable’. And from the decided cases we note a pattern emerging of the Labour Court finding that time and a third is considered to be ‘reasonable’ when it comes to the rate of pay.
Cases to be reviewed on this point include:
- Chicken and Chips Limited t/a Chicken Hut and David Malinowski [DWT159]
- Viking Security Limited and Valent [DWT1489]
However, the 33% premium is not a hard and fast rule and all the circumstances will be considered which led to a 25% premium being accepted as reasonable and even a 14% premium being accepted in Cadbury Ireland Limited v SIPTU [DWTO0720].
If you are an employer, therefore, you would have to be considering a Sunday Premium of at least 25% to have a good, stateable case that it is a ‘reasonable’ rate as envisaged by the Organisation of Working Time Act 1997.
Benefit in Kind not acceptable
The Labour Court has held that a premium must be paid and a benefit in kind-for example a free meal-is not acceptable and is not what was envisaged by the legislators when framing the act.
Composite rate of pay
If the contract of employment includes a rate of pay which claims to incorporate a Sunday Premium then the Sunday Premium must be identifiable; it is not good enough to simply state your rate of pay includes a Sunday Premium.
This is an easy mistake for an employer to make.
Update October 2019
An important decision was handed down from the High Court in this connection in October 2019, you can read about it here.
In essence, if a contract of employment contains a provision stating that the rate of pay has been calculated to take into account the requirement to work on Sunday this will almost certainly be sufficient and the employer will not have to provide evidence as to how much is being paid for working on Sunday. But you need to read the full decision of the case to fully understand the implications of this decision.