Employers caution: Out-of-hours emails and the 48-hour working week

Last week’s decision of the Labour Court in the case of Kepak v Gráinne O’Hara has illustrated the risk for an employer when its employee is found to have worked excessive hours. Media reports of the case highlighted the fact that the employee was awarded €7,500 because (among other factors) the employee was found to have regularly replied to work-related emails late at night. In this article we look at the ways in which an employer can minimise its risk of being the subject of similar claims in the future.

The employee in this case was a business development executive who was contracted to work 40 hours per week. She alleged that her workload was so great that she was often required to work almost 60 hours per week to fulfil her duties. She said that she received emails from her employer before 8am on many days, and that she often continued to receive (and reply to) work-related emails until midnight or even later.

Understanding an employer’s obligations

The employer in this case understood that the average working week is limited by law to 48 hours. The employer submitted that the employee’s duties did not require her to work for more than 48 hours per week and, if she did work long hours, this was a result of her not working efficiently.

These defences led the Court to consider two important aspects of the Organisation of Working Time Act 1997 (“the Working Time Act”). 

The first aspect is an employer’s record-keeping obligation. An employer is required to keep records, in the prescribed form, demonstrating that the employer is complying with the Working Time Act. Where an employer does not keep records in the prescribed form, then the employer must bear the onus of proving that the employee did not work excessive hours. In this case, the employer did not have sufficient records to prove its innocence and the employee’s assertion that she worked almost 60 hours per week on average was accepted by the Court.

The second aspect of the Working Time Act the Court considered was the fact that it is not a good defence for an employer to say that it did not require the employee to work excessive hours. An employer is in breach of the Working Time Act if it “permits” its employee to work more than an average of 48 hours per week.

This has led to two important lessons for employers:

1.  Ensure that appropriate records of employees’ working time are maintained: and
2.  Actively monitor the time it takes each employee to carry out his or her duties. If an employee is struggling to complete the contracted duties within the contracted number hours per week, then his or her manager should intervene. The manager should establish the cause of the problem and attempt to resolve it.

If an employee is regularly sending emails late at night then that employee’s manager should see those emails as a warning sign. If an employee is working inefficiently then his or her employer should address that inefficiency as a performance issue rather than risk being in breach of the Working Time Act.

Facts to note about the 48 hour working week

The prohibition on working more than an average of 48 hours per week is not the only provision that prevents employees from working excessive hours. With some exceptions, employees must also receive rest breaks during their shifts, a daily rest break of 11 hours between shifts and a weekly rest break of 24 hours (added to one of the 11-hour daily rest breaks) during each week as well.

It is lawful for an employer to permit an employee to work more than 48 hours in a particular week provided that the employee’s hours do not exceed 48 hours per week on average. The standard averaging period is four months. That averaging period can be extended to six months or twelve months in certain circumstances.  These averaging provisions allow employers and employees to meet unexpected peaks in demand (or predictable seasonal increases in workload) provided that each employee’s average working time is managed appropriately.

Rest breaks are not counted as working time for the purposes of the calculation of the average 48 hour working week.  However certain types of statutory leave is counted as working time for the purposes of the calculation.

Unless a specific exception applies, the prohibition on working more than an average of 48 hours per week is an absolute prohibition.  An employee cannot lawfully agree to work excessive hours. Therefore, even if an employee wants to work longer than the permitted number of hours (for example, as a means of earning overtime) the employer will still be in breach of the Working Time Act.

There are a number of ways in which an employer can face sanction for permitting an employee to work excessive hours.  An employee could take a claim to the Workplace Relations Commission (and on appeal to the Labour Court), in which case the employee could be awarded up to two years’ remuneration as compensation.  The employer could be inspected by the Workplace Relations Commission inspectorate, and be subject to the compliance process under the Workplace Relations Act 2015.  If an employee has an accident at work after having worked excessive hours then his or her employer may have an increased risk of employers’ liability for any injury suffered by the employee.

Furthermore, failing to keep the prescribed working time records is also a criminal offence on the part of an employer.

Some employees are exempt from the 48-hour working week

It is interesting that the employer in last week’s case does not appear to have availed of an exemption that is available in the case of some employees.  Part II of the Working Time Act does not apply to employees who determine their own working hours. This exemption applies even where the employee who determines his or her own working hours is under an obligation to work during certain minimum periods of time stipulated by his or her employer. However, the scope of this exemption may not be as broad as it first appears. The Labour Court has, in previous cases, held that where an employer requires an employee to fulfil so many tasks that the employee’s duties cannot be completed during normal working hours, then the employee is not truly determining his or her own working hours and the exception does not apply.

Key lessons for employers

The key lessons from last week’s decision of the Labour Court are that:

1. employers should keep appropriate records of employees’ working time and
2.  where it is evident that an employee is consistently working excessive hours, that employee’s employer should take prompt action to prevent the employee from continuing to work excessive hours.

For further information, please contact Loughlin Deegan or your usual contact in the ByrneWallace Employment Law team.