"I have recently joined a start-up company as HR. During that time, 5 employees have built up to between 12 and 15 weeks' time in lieu. I have, as I see it, exceptional circumstances as they were in the start-up, but I need them to get rid of this time in lieu before the fiscal year 2020 starts. What do you suggest would be the best approach? The employees are Chinese working for a China company in Ireland". In this case, in Northern Ireland.

So supposing you're in a similar circumstance and apply the circumstances here .;.;. there's no 48-hour opt-out in Ireland, so assume that we've got that in Northern Ireland. What's the situation?

Seamus: You have 12 to 15 weeks' time in lieu. That's a lot of . . .

Scott: That's a lot of time off.

Seamus: That goes to the aspect for me that time in lieu, or TOIL as we call it, is a super tool in relation to being able to work around difficulties and resourcing and everything else, and employees quite like it as well. It's great provided that it's managed well. I think that that's the key aspects of it with TOIL, that you do have to manage it.

I'm not for a second giving this person a hard time about the amount of TOIL that's been built up because they are in start-up, and things like that can happen, but then we look at what the solution is here.

The question is that she wants to get rid of the TOIL time by the end of the fiscal year. I'm not quite sure, whenever I look at it and break it down, that there's even sufficient time now, really, to do that. I think other alternatives are going to have to be looked at here.

I think just generally in relation to TOIL itself, the best position that you can present from is if you have something agreed in writing, and that should be a policy or procedure in relation to TOIL. Alternatively, you're sitting down with the employee and saying, "Listen. We're going to have a busy period over the next lot of months. We need to agree what our ramifications are here and what we're going to work with over the next lot of months".

You do need to be careful here. Obviously, in Northern Ireland, we have our working time regulations, and if the employee is going to be working for more than 48 hours a week, you need to get them to sign the opt-out. They have to be agreeable. You can't force them to do that. There has to be an agreement on both sides.

Scott: They can give that up as well, and it doesn't look like they have in this particular circumstance because they've been working.

Seamus: They've been working, working, working by the sounds of it this past year.

Scott: There are probably breaches of working time regulations all over the place because you need your 11 hours between shifts. You've got to have your rest break, your 20 minutes every 6 hours, or within a time period of 6 hours or more.

There are lots of breaches. I would be quite scared if I was this HR person here because it's unlikely that those people are going to end up healthy. The whole point of working time regulations and holidays and such, and I don't know if they've had any holidays, is that if you don't get them you get sick.

Seamus: Yeah, that's it. Then you have a resource problem within your business and whether you can function or not at that point. They're there for a reason.

Look, it happens. You have busy periods, and everybody is working hard, but you do need to build in time off in relation to that. I think that's an important step in terms of employers looking after the health and safety and the welfare of their employees.

The options here, really, in terms of trying to tackle this, I think that there are a couple of things that could be done. Just because TOIL has built up doesn't give the employee an automatic right to time off whenever they want, but it's going to always have to be agreed, and that's going to have to be on the basis that the business can facilitate it. You could probably clear some of this by allowing some time off in lieu.

You could maybe possibly look at some carryover into the next fiscal year. But again, you need to be careful that you're not going to have another build-up of it.

I'd also be slightly concerned when it builds up like that of any impact it's going to have on holiday pay as well. Obviously, if they're doing a lot of overtime, there could be an issue that arises in relation to that they haven't taken their holidays or that they feel that there's further entitlement.

You could look to pay it out. I'd have a discussion with the employees. We talked briefly just about this before we came on live. You could possibly look to do a deal with an employee in relation to it, accepting the fact that the employee would be short-changed, but sometimes there might be an acceptance.

Scott: A bird in the hand is better than two in the bush.

Seamus: Well, that's it. You can get a very dedicated employee that says, "I just really enjoy the job. I'm happy to continue doing the work that I am". You're going to have to have a serious conversation with an employee like that because they're going to get to the point where they are going to fall sick, but it may be that you can do a deal with them in relation to it or, alternatively, just look to pay out the time that has built up.

Scott: There may also be national minimum wage issues there if they're getting less than national minimum wage per hour when you add up the hours.

Seamus: You do need to be cognizant of that.

Scott: If they haven't paid it, and they don't pay it, then there may be statutory breaches there too, in which case they could be looking at fines.

Seamus: I have a client that contacted me during the week, an employee that is limited to doing 16 hours a week due to their restrictions on benefits and things that they get. The employee had gone above that because they were saving for a deposit on a house and then got a bill from the taxman, essentially, for monies that sent the employee into a bit of a panic.

I had suggested that maybe the other way of going around it is to look at TOIL to see if there's a way that you can manage that in a better way, and I think that's fine provided that you do manage it.

I think there are a couple of things in relation to managing, or just to clarify the details of the overtime and the TOIL that is available and that could be taken, because you don't want this huge build-up.

You need to agree to the time off in lieu in terms of writing, and I think that it's important is that it is taken down into writing, and agree to times when the TOIL can be taken. You want to be looking at your role and fulfilling your existing obligations, and then maybe just establishing a time for recording and approving.

A big problem for me in TOIL is that the employee will come and say, "I have 60 hours of TOIL built up", and the employer will say, "I have no evidence of that. I do remember seeing you a couple of late nights". There has to be a way to record it just to make sure that it's done properly.

Can You Make A Payment For Excess TOIL

Rolanda: Just to clarify, there may be circumstances where you could reach agreement to make a payment to the person for excess TOIL, but you would have to be very clear that that was agreed.

Seamus: Yes. I think you'd want to make sure that that was recorded in writing as well if there was an agreement or possibly even involve the Labour Relations Agency, but I would be a bit concerned whether the agency would balk. They have a job and a duty to do. They mightn't be so happy with an employee being short-changed, but I think certainly keep it recorded in writing.

I'm not saying that that's going to work. People are probably saying, "Who would agree to less than what they're entitled to?" But there are circumstances where employees will see, "There's not going to be a position for me to be able to take all of this, and if it's TOIL, I can work with it".