The introduction of smart phones into our working lives has meant that the working day has become very flexible. However the law on working time has not caught up with the 24/7 work access that we now have and employers still need to comply with working time requirements.
The widely reported recent case of Kepak v Grainne O'Hara has highlighted this working time risk for employers. In this case, the Labour Court awarded the complainant, Ms. O'Hara, €7,500 for repeated and consistent breaches of the working time legislation in Ireland.
So how did this determination arise and what are an employer's legal obligations in Ireland on maximum working hours? The case arose under the Organisation of Working Time Act 1997 which is the main piece of legislation in Ireland governing employee working time. The case came before the Labour Court as an appeal by both parties of the decision of the Adjudication Officer at first instance. The employer appealed the original decision in its entirety. The employee appealed the compensation level that had been awarded to her at first instance. She had originally been awarded €6,240 for working time breaches.
The employee's contract provided for a 40 hour week. The Organisation of Working Time Act provides that the maximum working week for most employees is 48 hours when averaged over a reference period. For most employees that reference period is 4 months. The employer submitted that Ms. O'Hara was not required to work more than 48 hours and her role could be done within this time. Ms. O'Hara submitted 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 8am and up to midnight or later and would have to reply to these emails.
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. The emails she submitted mainly ranged from 5pm to midnight. The employer submitted that Ms. O'Hara should not have had to spend additional time carrying out of her role and had received appropriate training on how to manage her time efficiently.
The Organisation of Working Time requires an employer to maintain working time records in the format laid down in the legislation. In this case the employer did not have working time records available in the required format. The onus of proving compliance with the working time legislation always rests with the employer. 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. The employer submitted that it was Ms. O'Hara's own inefficiency that led to her working more than she needed to. The Labour Court did not find this evidence sufficient.
The Labour Court referred to the wording in the legislation that the employer should not 'permit' the employee to work in excess of 48 hours. The fact that Ms. O'Hara was not required by her employer 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 Labour Court 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. For the Labour Court, 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. This was held to be in breach of the working time legislation and Ms. O'Hara was awarded €7,500 which was in excess of her original award.
While an individual award of €7,500 may be relatively low for some organisations, there is potential for flood gate claims following this type of determination.
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 it clear that employees are only required to check and respond to work emails in exceptional and urgent matters and not on a regular basis. Clear policies and communications should be put in place so employees understand this is not a regular requirement.
The major learnings for employers are:
a. ensure they keep proper records of working time demonstrating compliance with the Organisation of Working Time Act 1997. This is often overlooked when it comes to senior employees but 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 a failure to maintain appropriate records;
b. actively monitor employees' day to day working times. If an employee is receiving and responding to emails after hours on a regular basis this should be tackled by the employee's manager. This approach must be top down so that employees don't feel obliged to respond and it does not become part of the organizational culture.
Unlike the UK, employees in Ireland cannot opt out of the 48 hour maximum working week. While there is a limited exception to the maximum working week provision this does not seem to have been used in the employer's defence in this case. The legislation does provide that if an employee is so senior that they determine their own working hours then this part of the legislation will not apply. However from experience and case law, this exemption is a hard bar to reach and 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 it should be clearly stated in their contract of employment.
Failure to comply with the statutory maximum working week could result in claims to the Workplace Relations Commission or inspections from the Workplace Relations Commission. It could also impact personal injury claims where an employee has suffered an injury related to stress or tiredness.
Outside of this case there are other obligations under the Organisation of Working Time Act 1997 that employers must comply with. These include:
- rest breaks
- daily rest periods
- weekly rest periods
- annual leave
- public holidays
If you need help with any employment law matters in Ireland please contact the Lewis Silkin Ireland team - http://www.lewissilkin.com/Ireland/
In support of her complaint, Ms O’Hara submitted copies of emails that she sent to and/or received from her employers both before normal start time and after normal finish time on numerous occasions over the course of her employment. According to the Labour Court, these emails ranged from 5pm to midnight in most cases but instances of emails sent after midnight were also included in the documents.