UK/Ireland: Labour Court highlights risk of employees checking emails outside work

While the introduction of smartphones into our professional lives has meant the working day becoming increasingly flexible and fluid, the law on working time in Ireland has not caught up with the 24/7 work access that we now have. Employers still need to ensure they comply with working-time requirements.

A recent widely reported case has highlighted this working time risk for employers. In this case, the Labour Court (‘LC’) awarded the complainant, Grainne O’Hara, EUR 7,500 for repeated and consistent breaches of the Irish working-time legislation by her employer, Kepak Convenience Foods.

What was the background to this decision and what are an employer’s legal obligations in Ireland on maximum working hours? The litigation arose under the Organisation of Working Time Act 1997 (‘OWTA’), which is the main piece of legislation in Ireland governing employee working time. The case came before the LC as an appeal by both parties from the decision of the Adjudication Officer of the Workplace Relations Commission (the independent statutory body responsible, among other things, for the resolution of workplace complaints in Ireland) at first instance. The employer appealed the original decision in its entirety, whereas Ms O’Hara appealed the level of compensation she had been awarded (EUR 6,240).

Ms O’Hara’s contract provided for a 40-hour week. The OWTA provides that the maximum working week for most employees is 48 hours, when averaged over a reference period of four months. The employer said that Ms O’Hara was not required to work more than 48 hours and her duties could be done within that time. Ms O’Hara responded that her workload meant that she often had to work up to 60 hours per week in order to carry out her role. She further submitted that she received emails from her employer before 8:00 and up to midnight or later, to which she would have to reply.

To support her complaint, Ms O’Hara submitted copies of emails sent or received by her before her normal start time and after her normal finish time (mainly ranging from 17:00 to midnight). The employer argued that she should not have had to spend additional time carrying out her role and had received appropriate training on how to manage her time efficiently.

The onus of proving compliance with the OWTA always rests with the employer and the legislation requires employers to maintain working-time records in a specified format. In this case, the employer had no such records available in the required format. To rebut Ms O’Hara’s claims, the employer – and in particular her manager – gave a detailed analysis of her workload and associated administrative requirements to demonstrate that her claims were not credible and her role could be carried out within the maximum working week. In essence, the employer submitted that it was Ms O’Hara’s own inefficiency that led to her working longer than she needed to, but the LC did not find this evidence sufficient.

Referring to the wording in the legislation that the employer should not ‘permit’ an employee to work in excess of 48 hours, the LC said the fact that Ms O’Hara’s employer did not require her to work additional hours did not address the issue of whether she did in fact work in excess of the maximum working week. Ms O’Hara’s email evidence was deemed to be credible evidence of a working pattern in excess of the 48-hour working week.

The LC found that the employer was aware of Ms O’Hara’s working pattern and had not taken any steps to monitor and curtail her working time. The company’s failure to keep appropriate records had allowed this situation to arise unchecked. This in effect meant that Ms O’Hara had been ‘permitted’ to work in excess of the statutory maximum working time in the relevant period. The LC concluded that this was in breach of the OWTA and increased Ms O’Hara’s original award to EUR 7,500.

Put the smartphone down!

While some organisations might regard an individual award of EUR 7,500 as relatively low, there is the potential for ‘floodgate’ claims following this type of decision.

This case demonstrates that an employer has a positive obligation to take steps to ensure employees are not working excessive hours. Employers should consider how flexible their employees really need to be, and make clear that employees are only required to check and respond to work emails outside normal working hours in exceptional and urgent matters and not on a routine basis. Clear policies and communications should be put in place so employees understand this is not a regular requirement.

More specifically, the major learning points for employers are:

• To ensure they keep proper records of working time demonstrating compliance with the OWTA. This is often overlooked for senior employees, yet the obligation remains. In this case, the failure to keep proper records meant the employer could not comply with the onus of proof in showing compliance. There are also potential criminal sanctions for failure to maintain appropriate records.
• To actively monitor employees‘ day-to-day working hours. If an employee is receiving and responding to emails after hours on a regular basis, it should be tackled by the employee’s manager. This approach must be top down, so employees do not feel obliged to respond and it does not become part of the organisational culture.

Unlike the United Kingdom, employees in Ireland cannot opt out of the 48-hour maximum working week. While there is a limited exception to this provision, it does not appear to have been used in the employer’s defence in this case. The OWTA provides that if an employee is so senior that they determine their own working hours, then this aspect of the legislation will not apply. From experience and case law, however, this exemption is a high bar to reach: the employee should genuinely be very senior and not answerable to anyone in respect of their working time. Employers should take specific advice before assuming this will apply to any particular employee. If it does apply, this should be clearly stated in the contract of employment.

Failure to comply with the statutory maximum working week could result in claims to the Workplace Relations Commission and/or inspections by the Commission. It could also impact personal injury litigation, where employees claim to have suffered an injury related to stress or tiredness.