Organisation of Working Time Act 1997

Alternative means of claiming relief in cases of non-compliance with Part III .

40

40. (1) As respects a failure to comply with any provision of Part III in relation to an employee, the employee or, with the consent of the employee, any trade union of which the employee is a member may, in lieu of presenting a complaint in respect of such a failure under section 27 , include in proceedings to be instituted by him or her or it in respect of any matter under an enactment referred to in the Table to section 39 (2) a claim for relief in respect of such a failure and where such a claim is included the following provisions shall have effect:

( a) subject to the provisions of this section, the provisions of the said enactment (hereafter in this section referred to as “ the relevant enactment”) shall, with any necessary modifications, apply in like respects to the said claim (hereafter in this section referred to as “ the holidays claim”) and the procedures to be followed in respect of it (including procedures in respect of appeals) as they apply to the proceedings otherwise under the enactment,

( b) the relevant authority that hears the said proceedings may grant the same relief in respect of the holidays claim as a rights commissioner may grant under section 27 (3) in respect of such a claim and in so far as the grant of such relief consists of or includes the making of a requirement on the employer concerned to pay compensation to the employee the limit specified in section 27 (3) in relation to compensation under that provision shall, in lieu of any limit specified in the relevant enactment in relation to compensation that may be required to be paid under that enactment, apply in relation to such compensation.

(2) Notwithstanding subsection (1) (a)

( a) any provision of the relevant enactment requiring proceedings under that enactment to be instituted within a specified period shall not apply to such proceedings in so far, but only in so far, as they relate to the holidays claim,

( b) subsections (4) and (5) of section 27 shall apply to the hearing of the holidays claim by the relevant authority concerned as they apply to the hearing of a complaint under section 27 by a rights commissioner.

(3) In this section “ relevant authority” has the same meaning as it has in section 39 .

(4) References in this section to the institution of proceedings in respect of any matter under an enactment referred to in the Table to section 39 (2) shall be construed in accordance with subsection (5) of section 39 .