The recent Labour Court decision of Grainne O'Hara v Kepak Convenience Foods Unlimited Company which was a cross appeal by both parties, has caused widespread concern amongst employers.

The employee submitted evidence of emails between her and her former employer that were sent on a regular basis after 5pm and up to midnight, and other emails which showed contact after midnight and before normal starting time. The Respondent did not provide a full file of her emails and could not rebut her email evidence. The Respondent's failure to keep proper records of her working hours and its failure to monitor and curtail her excessive working hours, was determined as permitting the Complainant to work in excess of the statutory maximum of 48 hours per week and she was awarded €7,500.

Advice for Employers?

Flexibility of working hours is an important factor in many workplaces today and to facilitate such flexibility external access to work email and systems is often required. This decision should not be a deterrent to flexible working arrangements but should simply make employers more mindful of employees' total working hours and rest breaks. The Labour Court in this case noted that the employer was aware that the employee was working in excess of 48-hours per week but took no steps to curtail the time she spent working.

In order to avoid a similar situation occurring, employers should consider the following points regarding granting external access to work emails and the system:

  • Should access be limited to senior employees, who determine their own hours and are therefore exempt from the 48-hour per week limitation?
  • Is external access subject to the employee agreeing to rules regarding use and hours?
  • Is the external use being monitored re levels of working hours and ensuring employee takes 11 consecutive hours break in each 24 hours?
  • Is there a follow up policy where 11 hour break is not been taken or levels of working hours is high for the level of the employee?
  • Can the external access be blocked after a certain hour if the employee is not complying with the rules?

It is clear from this decision that amendments to the provisions of the Organisation of Working Time Act to take into account the use of technology and flexible working arrangements together with the health and safety of employees. Flexibility in the workplace is important for both employees and employers. This case should not be seen as a backward step in this regard. It is important in a number of workplaces that employees have external access to office emails and systems. The above points should assist employers in ensuring their employees get the required rests and mitigate any potential liability in this regard.

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Originally published 30 August 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.