Working Time and Accessing Emails Outside of Working Hours

Posted in : Seamus Says - Employment Law Discussion on 7 September 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. "Our employees regularly access emails through their personal devices from home outside of their normal working hours. I understand there is a recent Irish decision, it's a Labour Court decision of Kepak against Grainne O'Hara, and it's around working time and emails outside of office hours."

Scott: Now, in that case, my understanding, Seamus, is that the employee was awarded €7,500 because the employer didn't keep records, and it was deemed that she had, by answering emails and dealing with emails in the evening, been working outside her working hours. So the first question here is, if an employee works outside contractual working hours, for example, on the daily commute, evening or weekends, answering emails, might this constitute working time under the working time regulations or the directive?

Seamus: I think, just what we can take from the Kepak case, and certainly it's an Irish decision, but what we can take from it is that, yes, it's the simple answer to that. This was a case around an employee that had complained that the volume of the work that she was expected to undertake and claimed that she was having to record all her activities and engagement with her customers, that that was in excess of the 48-hour working statutory minimum, sorry, maximum. That's me as a bad employer there. But yes, the maximum there. And what she'd done was she had actually provided all the emails that she was receiving and that she was responding to in the evenings.

Scott: And they showed that she was working outside working hours.

Seamus: Yes. And I suppose the important point of that case was that she had the evidence, she was able to provide it, and the employer was at a bit of a loose end and embarrassed by the fact that it was not up to speed in terms of the work that the employee was carrying out, and its records of that work itself. And the court had essentially found that the respondent hadn't kept records of the claimant's working time as required under the act.

Now, there is a whole set of different regulations in the South and they're open to inspections in terms of an inspector coming in and asking to see records of working time, making sure that people are getting their adequate breaks and things like that. So, certainly, there's more of an onus in the south for employers to do that, but they were punished on the fact that they hadn't kept those records, they weren't aware what the hours were.

And I suppose, like, what we have to take from that case is that if we are working on emails outside of the office, whether it is a quick two-minute email in the evening or it's something more serious that we're doing, lots of us have remote access into our system. Most people . . . majority of people might have their emails on their phone. Could be very tempting to do the work, but I suppose where you have a situation where an employee feels that the work is excessive, and they are keeping a record of it and it's not hard to keep a record of it, because the email, it's tangible, you can print it out, you can show it, that the risk is that, yes, you are moving on past the statutory limit.

It's also worthwhile looking at the contract, because a lot of contracts for senior managers and things like that, will say that you're just simply required to work the hours that it takes you to complete the role, or alternatively, it'll say that you're paid for so many hours, and the work you do after that, that you're not paid for. And a lot of us in jobs, as well, don't raise a complaint and accept the fact that there's work to do in the evenings.

Scott: Well, sometimes it's in your own benefit. So we were chatting earlier, when you do some stuff in the evening, as do I, or if I go on holiday, I'll clear out all the rubbish emails, none of the ones from customers, by the way. I give all the ones I don't need, and if something needs action straight away, I might pass it on to a colleague. And that means that when I come back from holiday, I know that I don't have thousands of emails sitting on there.

Again, it just makes my holiday better than if I spend half an hour a day clearing out my mailbox, you know. I don't claim that as working, and I'm not going to take a claim over it, but you know, in the Kepak case what happened, was that she was saying that she couldn't get through it. They said she should be able to get through in the normal working hours. So implicit in that is that if they think she's being inefficient, and they could be fined, as they were. There was award of €7,500, they should have been taking action against this employee because she's not managing to get through the work efficiently.

Seamus: Yeah. I mean, that's, I suppose, well, it could be the positive and the negative out of the case, I suppose, but, you know, it's the risk that you have an employee who's very diligent, and takes their time going through the work, but gets it spot-on, gets it right, and someone that is efficient makes the odd mistake, but still gets the job done and does it well. So, you know, there is, kind of, the balance that's needed in relation to that, but, ultimately, what the company here, Kepak, were saying about the employee, Grainne O'Hara, was that, she wasn't efficient, she wasn't getting the job done, she had been trained, she should have been able to get the work that was required done within her working hours.

And we all know those employees that can manage that, could do it very well, and there are others of us that are distracted by the general office going-ons, and people calling at the door, and the list that you set out that morning to get done, you just don't get it done because there may be something that's happened during the day that . . .

Scott: It's more interesting.

Seamus: Yes. Or you get a call from a client that something else needs urgently done. So, I mean, you do need to be careful, and you don't want to get in a situation, I don't think, with an employee where you are badgering them in terms of their productivity. And we know that in certain types of jobs that you can look at all sorts of graphs and charts in terms of how efficient and productive the employees are, but, ultimately, I think if you're going to come and say, you know, "She's slow at the work. She wasn't getting through the work," you have to have the evidence to back that up.

And second of all, there should have been a process in order to either give her training to improve, or disciplining her for not doing the work and maybe I don't know, sitting on the internet for half the day instead. They hadn't done that. They'd no evidence of it, and the court penalised them accordingly.

Should employers actively monitor it, even within Northern Ireland or the UK in general?

Seamus: I mean, I think the lesson from the Kepak case there is that, yes, I mean, it appears that employers should be on top of what hours the employees are working. And even from just a standard point of view of being a caring and from a welfare element for employers, you know, you want to be on top of what hours the employee is putting in. If you're seeing an employee coming in in the mornings, and they're tired, they're looking burned out, you know, you need to know whether that is because they're partying in the nights, or, alternatively, is it because they have too much in their plate in terms of work?

Again, it's a balance because there could be other personal issues that are going on. They could have young children that are keeping them up at night, but an employer should be aware of workloads and if is mismanagement where you have one employee that has a heavy workload, and an employee that's doing the same job, but maybe has 50% of that workload, that's for the employer to manage. And you would be thinking along the lines of if there were health implications arose, or health and safety concerns that arose in respect to the employee, that you could end up with a very dangerous personal injury claim or something along those lines.

Scott: There are some famous cases, and that happened in Sutherland, and so on, where the employer puts in place some kind of protective plan. They say, "Okay, your workload's too much. We know you can't get through. We'll give you some assistance," whatever that happens to be. The big danger, really, is that the employer doesn't follow through on whatever that action plan is.

Seamus: Exactly. No. That's happening in Sutherland case where there was undertakings by the employer to assist the employee, and there was failings on it, and it was almost a double slap in the face, and you're penalised accordingly for that. So, absolutely, the employer should be aware of the workloads, even from a management point of view, knowing what the employees are doing, because there could also be incentives and rewards for those employees, as well, that maybe are, you know, taking on the additional work, happy to do it, and it's aiding and helping the business, but you just don't want to get to a tipping point where you're putting an employee's health and safety at risk.

But you know, there's potentially measures that the employer can do in order to assist the employee in those circumstances where maybe they have a genuinely hard-working employee, they have concerns about the amount of work that they're doing, and they maybe want to look at, you know, all those sorts of softer skills and softer things that they can bring into an office environment, to maybe help the employees, because if it is a stressful place of work, you know, you're going to end up with a lot of employees out on sick leave and things like that.

Scott: So, it's about trying to figure out in your own workplace what kind of works. There are lessons from others now. It's about individuals, but presumably in the Kepak case, there were other employees who were managing, they were saying, to get through all the work. Well, there must be lessons, how do you manage it? And Miss O'Hara did not manage it in that circumstance.

So, how do some people cope? There may be coping mechanisms. There may be assistance or maybe mindfulness training. There may be any number of things, flexible working, whatever that happens to be, get a buddy system, but a lot of it really comes down just to good management, one-to-one meetings with your employees so you can check whether they're okay every week, or every month, or whatever that is, and you don't let the build-up happen. Building up relationships between managers and employees is probably the best way forward, really.

Seamus: Yeah, because, ultimately, where that's going to go to is a breakdown in the working relationship, and it's either going to . . . the person's going to go out on sick or their motivation is going to fall through the floor because they've just had enough. So it is interesting. You do see when the city centre here at lunchtime, people carrying yoga mats and, you know, doing different things that their employers have facilitated in their offices for them to help them unwind and de-stress and things like that. And I think that the evidence of all of that suggests that it does assist in productivity and in decreasing stress.


This article is correct at 07/09/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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