THE dramatic rise of mobile internet usage and the expectation, in many careers, that employees are contactable outside of working hours, in some cases 24/7, raises questions over employee rights and what measures employers should take to mitigate potential legal action.
As the boundaries between work and home life become increasingly blurred there is more focus around what constitutes the ‘working day’. Recent headline-grabbing research argues that commuters, by train for example, are so regularly using travel time for work emails that their commute should be counted as part of the working day.
While we have no case law as yet on the commute counting as ‘work’, in a recent decision in the Irish Labour Court, Kepak Convenience Foods Unlimited Company v Grainne O’Hara, Ms O’Hara was awarded €7,500 for repeated breaches of the Organisation of Working Time Act by her employer.
Ms O’Hara complained that the volume of work she was expected to undertake required her to deal with work emails out-of-hours leading to a working week in excess of the 48 hour statutory maximum.
Despite her employer’s defence that Ms O’Hara was expected to undertake the same volume of work as other employees, none of whom worked in excess of the 48 hour maximum week and that Ms O’Hara was trained to carry the work out in time, the court ruled in favour of Ms O’Hara finding that her employer had failed to keep adequate records of an employee’s working time as required under the Act.
Whilst the Kepak decision is an Irish decision and the Working Time Regulations (Northern Ireland) 1998 do not require Northern Irish employers to keep records of employees’ working time, it does serve as an example and warning to all employers to be at the very least aware of the volume of work an employee is undertaking.
In short, if an employee works outside of contractual hours, for example, on the daily commute, evenings or weekends, answering emails or calls, it is possible that this work will constitute working time under the Working Time Regulations (Northern Ireland) 1998 or the Working Time Directive 2003.
With the Kepak decision in mind, the starting point for all employers should be the contract of employment with the employee. For a large number of senior positions, there will be provisions within the contract which will require an employee to work the required hours to complete the role, or alternatively, there may be a provision which details that any hours worked over the 48 hour maximum will be unpaid.
In other positions, employees may have signed a 48 hour opt-out agreement which confirms an employee’s consent to work in excess of the 48 hour restriction.
A work-life balance is essential for both employer and employee. By encouraging and assisting employees in obtaining a work life balance, employers will reduce the chances of employees burning out, and suffering mentally and physically as a result of their workload and work related stress.
This can be achieved in a number ways including ensuring that employees take breaks, offering incentives to employees and monitoring working times.
:: Seamus McGranaghan is director (commercial) at O'Reilly Stewart Solicitors (seamus.mcgranaghan@oreillystewart.com or 02890321000).
