The HSE has been ordered to pay over €11,000 in compensation to a care worker who said she was "never given a proper break" in the course of 26 years' employment at a residential home.
The worker, Jackie Deevy secured the award on foot of a complaint to the Workplace Relations Commission (WRC) under the Organisation of Working Time Act 1997 after health service management admitted that it had not maintained working time records.
It meant the HSE was not entitled to rely on an exemption from the working time legislation, which normally applies to healthcare workers, in defending the claim.
Ms Deevy’s workplace, a "residential care location" which houses some residents with "challenging behaviour" was not named by the tribunal at the request of the HSE, which expressed concerns about patient confidentiality.
In evidence, the complainant said she "was never given a proper break" and "simply had to grab a cup of tea and a sandwich in the vicinity of [a] service user".
She told the WRC she had not known that she was entitled to shift breaks, but confirmed in answer to questions put to her under cross-examination that she was "never instructed not to take a break".
Niall O’Sullivan of the Psychiatric Nurses Association (PNA), who represented Ms Deevy at a hearing last year, submitted that his client "has not had appropriate breaks for 26 years" and ought to get "an award on the upper end of what is allowable".
He told the WRC that when the union wrote to the HSE about breaks, the response from management was that there were "no official breaks in the service and that the staff take their meals in conjunction with the residents of the houses".
He submitted that the practice described by the HSE was called "social modelling" – explaining that it was a "clinical term for a theory that stipulates that we learn to imitate others by observing their behaviour".
"This is not a rest break as defined by the Organisation of Working Time Act," Mr O’Sullivan submitted – arguing that the European Court of Justice had repeatedly ruled "that you can be working or resting, but not both, as they are mutually exclusive".
Eamonn Ross, a human resources manager in a regional service run by the HSE, argued Ms Deevy "was entitled to avail of breaks" and that this had been "clarified" with the PNA.
"There is adequate space within the house for staff to take their breaks in a relatively quiet atmosphere," he argued. He added that a worker could go to their car if they wanted to make a phone call during their break.
He said the European Working Time directive recognised that uninterrupted rest breaks could not be guaranteed for all workers – including those engaged in providing treatment or care at hospitals or similar facilities and cited the Irish legislation explicitly providing for an exemption to the Organisation of Working Time Act in the circumstances.
A clinical nurse manager who gave evidence told the tribunal there was "no schedule of breaks done out in advance". She said that staff were entitled to take a 15-minute break and to use the kitchen, which was a common area for both staff and residents.
Cross-examined by Mr Ross, the manager accepted there was "nothing in writing, only the assumption that breaks are taken".
Adjudicator Conor Stokes wrote in his decision that it seemed there were "no facilities for having a break that did not include the likelihood of taking a break with the residents".
He wrote that as the HSE was relying on an exemption from the working time legislation, it was "incumbent" on the management side to show it was complying with the conditions of the statutory exemption.
"In this case, the respondent did not record when the complainant took breaks, stating that it was for the complainant to take the breaks. However, no note of any compensatory breaks, if such were facilitated, was kept."
He also found that instances where Ms Deevy had been having a break at the same table as the residents "does not amount to rest" in the environment of a residential care setting.
Ruling the HSE in breach of the working time legislation, Mr Stokes awarded Ms Deevy compensation equivalent to 10 weeks’ pay, a sum of €11,023.
He also ordered the HSE to "comply with the legislation and maintain a record of breaks taken and the circumstances of the compensatory rest periods".
