The Right to Disconnect – A Significant Decision from the Labour Court on “Out of Hours” Emails
Last week the Labour Court awarded €7,500 to an employee who, by sending and receiving work-related emails outside normal work hours, had exceeded her statutory maximum working hours. Significantly, the Court found that the employer, in failing to monitor and curtail her working pattern, as well as failing to keep proper records of her working hours, had "permitted" the employee to work excessively, in breach of the Organisation of Working Time Act 1997 (the OWT Act).
In today's society the traditional concept of structured 9 to 5 working hours is giving way to the more fluid models of remote working and more flexible working arrangements. In addition, many employers are engaging with employees across multiple time-zones and conference calls are routinely set up outside of core hours to facilitate all participants. With this in mind, the need for employers to ensure a work-life balance and minimise the plague of the "perpetual plug in" in today's "digital workplace" is evident.
In light of recent Irish case-law, what safeguards should employers put in place when balancing business interests and the health and safety of employees?
The Kepak case – the facts
Briefly, the complainant was employed as a Business Development Executive with a 40 hour working week, as per her contract. However, the nature of her role required her to record her activities and engagement with customers on a computerised system which, she submitted, resulted in her working over 48 hours per week. In support of her claim under the OWT Act, the complainant produced copies of emails sent both before her normal start time and after her normal finish time and asserted that she worked approximately 60 hours a week.
In defence, her employer argued that the complainant should have "comfortably completed" her work within her contracted 40 hours a week but she had chosen to "adopt a less efficient procedure for completing her administrative tasks" which may have increased her working hours. Significantly, the employer had kept no record of the complainant's worked hours.
Section 15 of the OWT Act provides that an employer must not "permit" an employee to work in excess of an average of 48 hours a week. Section 25 of the Act requires an employer to keep records to demonstrate compliance with the Act for at least 3 years from the date the record was created.
The Labour Court found the employer had breached sections 15 and 25 of the OWT Act by permitting the employee to work in excess of the statutory maximum weekly working hours and by not keeping records of her working hours.
The Court was also guided by the fact that the employer was "through her [the complainant's] operation of its software and through the emails she sent it, aware of the hours the complainant was working and took no steps to curtail the time she spent working". The Court concluded that such a situation demonstrated that the employer had "permitted" the complainant to work in excess of the 48 hour week and, therefore, contravened its statutory obligations under the OWT Act.
This case can be contrasted with a separate Labour Court case from 2008. Here a similar claim by an IBM telesales specialist failed because her employer had, on a number of occasions, taken steps to dissuade her from working excessive hours. In that case it was held that the employer "did not willingly breach the Act as the claimant greatly contributed to the situation". The Court found that the employer "made a bona fide effort to bring about a state of affairs in which the claimant would cease working in excess of the permitted hours". In such circumstances the Court was satisfied that the breach was "technical and non-culpable in nature and that the claimant was herself primarily responsible for what occurred".
Email Curfew – the Right to Disconnect?
Back in 2012, Volkswagen blocked all emails to employees' smartphones after-hours. Daimler operates a scheme called "mail on holiday" that automatically deletes employees' emails while they are on holiday. More recently, Porsche has indicated it may follow suit and is considering a new approach whereby any emails sent between 7pm and 6am are "returned to sender". The rationale behind this email curfew is to respect leisure time and reduce work-related stress associated with staying "switched on" and "plugged in" even after the working day has ended.
Last year France introduced a new law requiring employers with more than 50 employees to set hours when staff should not send or answer work-related emails. A similar approach has been adopted in Germany and Italy. More recently, in March 2018, the "Right to Disconnect" bill was proposed in New York to ban private companies with more than 10 employees from requiring their workers to respond to emails outside work hours. While this bill is still under consideration, it is proposed that businesses would be fined $250 for each instance of non-compliance with increased fines envisaged for repeat offences.
Notwithstanding the culture shift being seen in other jurisdictions to recognise this "right to disconnect", employers should take note that the decision in the recent Kepak case is slightly different. This case was not an example of an employer contacting its employee after-hours. Rather it was the employee herself who was sending emails outside normal working hours. Here the nail in the coffin of the employer's defence was a failure to keep records of the complainant's working hours, coupled with a pattern of permitting the employee to continue emailing out of hours, without any steps being taken to address this.
Accurate record-keeping of employees' working hours is a complex task given today's fluid and flexible working arrangements which can result in blurred lines around the concept of "working hours". But, as the law currently stands, a failure to keep such records and allow employees to work beyond "normal" working hours will likely be fatal.
Date published: 13 August 2018