Dear Member,

During a recent visit to a member premises, a WRC inspector formed the view that the Payment of Wages Act 1991 had been contravened as a result of “deductions” being made from pay in circumstances where employees had been clocking in earlier or clocking out later than their rostered time but were being paid as per their rostered hours only, in the absence of evidence to prove the actual hours worked.  

In this case, employees appeared to be working 5/10 minutes each day more than they were being paid for.  Employees may have either (i) occasionally clocked in a few minutes early; or (ii) delayed a few minutes after finishing work before clocking out, sometimes due to delay in actually getting to the clock machine.   However, in circumstances where the member had no separate records confirming the actual hours worked by the employee (other than the employee rosters), the WRC inspector took the view that the clocking-in records could be relied upon as a record of the employees’ working time, for the purposes of calculating their pay, and for the purposes of the Organisation of Working Time Act 1997.

This has important implications for all members.

We sought a legal opinion in relation to this issue:

In summary, unless there is persuasive evidence to show that an employee has only worked the rostered hours and has not worked the additional time as per the clocking in records, employers should pay employees in accordance with the clock-in records, which may be relied upon by the WRC as a record of the employees’ actual working hours.

If persuasive evidence exists to show that employees are incorrectly clocking in early or late, and are not actually working the additional time, then the relevant amount of wages does not need to be paid and this will not be an unlawful deduction. As such, wages are not “properly payable” as set out in the Payment of Wages Act 1991.

However, it will be difficult to provide such evidence.

Where clocking systems are being used, we therefore recommend that members should frequently remind employees that they should only clock in when they actually commence their shift and that they should clock out immediately once they finish their shift (unless required to work overtime). Ideally, members should have a policy setting this out.

In addition, we recommend members implement a procedure whereby employees who are on the premises and clock in earlier than their start time or clock out later than their finishing time complete a form detailing start time, actual clock-in time, finishing time and clock out time where these differ and reasons for the differences.

Importantly, however, for this system to be effective, members will need to actively monitor clocking in records on a frequent basis (e.g.: weekly). Members will need to actively follow up with employees who are clocked in for more than their rostered hours and ask them to explain why they were clocked in for the hours in question.

Please click HERE for template form.

Alternatively, members could consider requiring employees to complete a form on a weekly basis confirming their hours worked each day.  This would serve as confirmation of the actual hours worked. 

Please click HERE for template form.

Members should make periodic checks to ensure employees are adhering to the hotel’s electronic time and attendance policy and that the time recording system is accurate and up to date at all times.

Note: It is important to allow sufficient time for employees to travel to the clock at the end of shift as they are deemed to be working until they clock out.

Please contact Nuala McLoughlin at mcloughlin@ihf.ie if you have any queries in relation to this issue.

Kind regards,

‌Tim Fenn
Chief Executive