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Childminders and Code of Practice for Protecting Persons Employed in Other Person’s Homes

The recent case of A Childminder v Parents serves as a reminder to those employing persons in their home that the Code of Practice for Protecting Persons Employed in Other People’s Homes (2017) is applicable and that those working in domestic settings are entitled to the same employment law protections as others. Although the Complainant lost her case, it is still very useful for employers and employees alike to revisit the law in this area.BackgroundIn this case the complainant childminder submitted that she did not get proper rest breaks  under Section 12 of the Organisation of Working Time Act 1997 whist working 38 hours over a period of 3.5 days per week. The Respondent employer argued that the complainant was encouraged to take regular breaks and in addition to allow the TV on for an hour a day to allow her take a break. The respondent also stated that one of the children was in school until lunchtime and the other child took naps. In addition they stated that it was not practical for them to employ a second person specifically to allow the complainant take rest breaks.Workplace Relations Commission (“WRC”) DecisionThe WRC considered the issue of rest breaks and noted:”A common-sense approach should be adopted by employers and employees in such situations which takes account of the circumstances existing in the employment and has regard to the safety, health and wellbeing of employees. It would be desirable that employers and employees and/or their representatives agree appropriate protection measures as respects an employee’s conditions of employment. While it is not feasible to define such appropriate protection/conditions of employment measures, the concept might include measures which provide for, in addition to normal health and safety requirements:i) enhanced environmental conditions to accommodate regular long periods of attendance at work,ii) refreshment facilities, recreational and reading materialii) appropriate facilities/amenities such as television, radio and musiciv) alleviating monotonous work or isolationv) transport to and from work where appropriate”It also looked at the High Court case of Stasaitis v Noonan Services Group Ltd [2014] IEHC 199 which concerned a security guard who was required to remain in his security hut for eight hour without a rest break. He was however allowed to take as many breaks as he wanted during periods of inactivity and it was accepted that there were such periods during his shift. He was provided with kitchen facilities and an area in the hut to take such breaks. The court held that the requirement to provide compensatory rest periods had been complied with. Kearns P referred to the fact that kitchen facilities were provided and an area where breaks could be taken as the security man wanted during periods of inactivity. The Court did not accept the argument that employee had not received compensatory breaks as his employer had not specified fix breaks during his shift commenting that brakes of a fixed duration could have the effect of reducing the employees’ periods of actual rest period.DecisionThe Adjudicator noted“I am satisfied that the Complainant had time when she was not supervising the children when she could have taken her breaks; for instance, when they were watching television. In many ways it was up to the Complainant to create the circumstances where she could take her breaks undisturbed by the children”  

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