When Will “Acting-up” Stand Up in Court?

Conor White, Senior Associate CKT, reviews the recent appeal to the Labour Court concerning the law around “Acting-up” Allowances and the 84-day rule.

Introduction

In June of this year, a successful appeal to the Labour Court was made by the Department of Housing, Local Government and Heritage, against a recommendation of the WRC. The Workplace Relations Commission (WRC) recommendation was that the Department should compensate a worker for “acting-up”. The decision of the Labour Court demonstrates when allowances can and cannot be given for employees who voluntarily “act-up” and work in a role above their substantive grade. The case is particularly interesting from the point of view of public bodies whose employees may claim to be “acting-up” despite having not been given permission to do so.

Background to the Claim

In these proceedings the Worker had been employed as a Craft Gardener in Muckross House since 2003. He referred a trade dispute to the WRC on 28 April 2022 alleging that he had not been compensated by his employer appropriately for “acting-up” at a superior grade on various occasions since 2006. He was promoted to Chargehand Craft Gardener in March 2023. The Worker claimed that there had been no material change to his duties since he was promoted. The examples given of these functions included stepping in for the Foreman while he was on annual leave, collecting and distributing payslips, signing-off on invoices and interviewing applicants for seasonal employment. The Worker’s claim was successful in the WRC, and the Adjudication Officer recommended that the sum of €3,072.00 should be paid by the Employer to the Worker as compensation.

The Appeal to the Labour Court

The Employer appealed the WRC decision and submitted  that the Worker had not been “acting-up” for three reasons:

1. He had not received any sanction for an “acting-up” arrangement from the appropriate authority, i.e. the Head of Human Resources;
2. He was told in 2014 that he was not eligible for an “acting-up” arrangement, and this was confirmed in 2019; and
3. Financial remuneration for “acting-up” (when sanctioned) is only payable when an employee has been “acting up” for at least 84 consecutive days.

The Employer also relied on  a Circular entitled “DPE123 Re State Industrial Employees – Acting-up Allowance – 84 day rule”. This letter had been agreed at Joint Industrial Council.

The Decision of the Labour Court

The employer was ultimately successful in their appeal, with the Labour Court holding that it had not been established that the Worker met the criteria for “acting-up” as set out in Circular Letter DPE123.

Conclusion

This case provides a useful precedent to show that unless there is an agreement between an employer and employee, a claim for “acting-up” is not likely to succeed.