WRC finds against HSE in case of Donegal nurse denied proper rest breaks

A Donegal nurse who highlighted an issue over rest breaks - including those for breastfeeding mothers - for workers at a centre for people with intellectual disabilities has been awarded over €9,000.

The HSE has been ordered to pay out €9,380 to Melissa Gallagher.

Ms Gallagher, who hails from Ardara, secured the award after bringing a complaint to the Workplace Relations Commission (WRC) under the Organisation of Working Time Act (OWTA) 1997 in respect of an alleged failure to provide her with rest breaks.

The HSE denied the complaint, saying that rest breaks were provided at all times. Hearings took place in September and December 2024.

Ms Gallagher took up a position as a nurse at Clara House, a day-care intellectual disability services day centre in Killybegs, in September 2022.

Ms Gallagher raised concerns when informed that rest breaks were to be taken with service users, meaning that she would not get an uninterrupted break. There was no staff room available for staff to get away from the job and to avail of rest breaks.

She outlined that this meant sometimes having to feed a service user, supervise a service user or cut up food for a service user at the same time as she was supposedly taking her rest breaks. 

This occurred, the hearing was told “nearly every day and every break”. 

Ms Gallagher said she was often the only nurse on duty and was required to be on duty supervising service users during her rest breaks to make sure that one didn’t choke when they were eating or otherwise was unsafe.

Ms Gallagher raised a grievance - which included a related matter about breastfeeding breaks, as provided for in HSE policy - saying the centre was ‘understaffed’ and there were not enough healthcare assistants, but it was she who would be in trouble if service users were exposed to risk.  

The complainant said that what she was provided with did not constitute a rest break because she remained on duty during the supposed rest period which, she argued, was in breach of the OWTA.

When Ms Gallagher raised the issue with her manager, she was told: “You’re on a paid break, which means a working break”.

Another witness corroborated that staff rest breaks were taken alongside service users in the dining room and there was no chance to have an uninterrupted break.

Ms Carmel Boyle, the manager of Clara House, gave evidence on behalf of the respondent.

It was accepted that rest breaks are usually required to be taken by staff in a shared dining room alongside service users and, as service users treat the facility as their home, there is no separate room into which staff may go and service users may not

When asked if a staff member were permitted to leave the building to go to their car for their rest periods, Ms Boyle said they could so long as there was enough supervisory cover within the dining room. If there was no cover then they would not be allowed to leave the building.

No records concerning allocated or taken rest periods were kept.

Ms Boyle said that if a staff member said that they did not get a sufficient break that day, then that person would be allowed to leave early at the end of that day, meaning that the staff member received compensatory rest periods.

The respondent submitted that the provision of daycare to service users with intellectual disability is an exempted activity and that compensatory rest periods were provided.

WRC adjudication officer Emile Daly said that she was not satisfied that statutory rest periods were provided.

In reality, the rest breaks were not rest periods because they were working time,” Ms Daly wrote in her decision. 

“Working in disability services can be exhausting work. At the risk of understatement, rest breaks are particularly necessary for staff working within this area.”

Ms Daly said that when Ms Gallagher lodged her internal grievance she could not have known that the breach for a breastfeeding break would turn into an industrial relations complaint. “I am satisfied that her rest period breach continued until the outcome of her internal grievance issued on 4 December 2023,” Ms Daly said.

Ms Daly noted that Ms Gallagher had conceded that the respondent activity was exempt from the obligation to provide rest periods. The adjudicator said she was “not convinced” that this assertion was correct but was obliged to accept the position.

However, Ms Gallagher submitted that even if a respondent activity is exempt, there is an obligation to provide rest breaks that may be reasonably regarded as equivalent to the statutory rest periods and breaks. This did not occur “because the failure to provide breaks had become a cultural norm in Clara House”.

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Ms Daly said she was not satisfied that the respondent discharged their obligation to prove that compensatory rest was provided and found that the complaint was “well-founded”.

As a result, Ms Gallagher was awarded 10 weeks’ gross salary, an agreed sum of €9,380.00.