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Working on your own time – checking emails after hours

Patricia Rooney Patricia Rooney of Tughan’s outlines what businesses need to ensure is in place so employees are not working in excess of 48 hours per week.

Employees have always checked their emails. Now, with smartphone in hand, they can check them anywhere, at any time; at the weekend; on the beach; before they go to bed. Most importantly, this increased connectivity is quickly changing our perception of what can be expected of employees who are never truly “switched off” in a digital workplace which extends far beyond the office doors.

No reasonable employer should expect an employee to work their normal contracted hours without pay. After all, this is indisputably “working time”, which is defined in the Irish Organisation of Working Time Act 1997 as any time that an employee is “at his or her place of work or at his or her employer’s disposal” and “carrying on or performing the activities or duties of his or her work”. This definition is similar to the corresponding legislation in Northern Ireland and GB.

As this “working time” definition enters its 20th year of service, mobile technologies have raised a valid question – can the existing statutory framework for safeguarding the working time rights of employees adapt to the challenges posed by the digital world?

Helpfully, the Irish Labour Court has provided its answer. In the recent case of Kepak v Gráinne O’Hara, it held that an employee had worked in excess of the 48 hours per week allowed under the 1997 Act because she routinely checked and responded to her emails after hours. Indeed, Ms O’Hara claimed that her true working time was closer to 60 hours per week. Her employer (who appealed the initial decision of the Workplace Relations Commission to the Labour Court) also failed to keep proper records of their compliance with the 1997 Act. This left them without a way to rebut Ms O’Hara’s argument, which she evidenced by her numerous emails sent, and their responses, after office hours.

This decision is in a similar vein to a recent legislative change in France, following a long campaign from trade unions, which gave workers the “right to disconnect” from technology after working hours. As French, Irish and UK legislation on working time originates from the same European Union law, it may not be long before a similar case is brought before a court or tribunal in Northern Ireland or Great Britain.

Following Kepak, employers in both the Republic of Ireland and the UK should carefully consider the impact of technology on their employees’ working time, in three main areas:

Firstly, you must comply with the statutory 48-hour weekly limit and requirements on rest periods.

Secondly, you should consider the potential health and safety implications of excessive working hours and the risk of “burn out” to staff.

Thirdly, you should review your contracts of employment and where necessary take expert legal advice on drafting appropriate working time opt-outs for relevant employees, and contractual clauses dealing with “unmeasured” working time for executive staff.