Emailing Outside of Office Hours: How Do I Handle It?

By Deirdre Malone
20 August, 2018

Employers should take note of the recent decision in Kepak Convenience Foods Unlimited Company –v- Grainne O’Hara, WTC/18/18 ( 19^th July 2018)

Background
The Organisation of Working Time Act (“OWTA”) directs that an employer shall not permit its employees to work more than an average of 48 hours in any period of seven days. There are additional restrictions in terms of daily rest and night working hours, but for the purpose of this query, it is the 48 hour maximum working week that is relevant.

The Facts
Ms O’Hara brought a claim to the Workplace Relations Commission (“WRC”). She joined Kepak Convenience Foods Unlimited (“the employer”) in July 2016 as a Business Development Executive. She had a written contract of employment (40 hours per week over five days). The contract contained a clause directing Ms O’Hara to cooperate with the employer’s procedures for monitoring the hours that she worked. This is because a large part of Ms O’Hara’s role was on the road, being out of the office visiting customers, clients, suppliers etc.

Ms O’Hara’s contract of employment terminated before she had 12 months’ service (April 2017). Her complaint to the WRC was that she worked well in excess of 40 hours every week in breach of the OWTA.

OWTA Complaint
Ms O’Hara’s case was as follows:

1. She was required to make up to five site visits with customers/clients a day.
2. She was required to input information regarding her sales on a computer or tablet (in respect of which she was fully trained, according to her employer).
3. Ms O’Hara found the process overwhelming and too complicated.
4. She was obliged to map out her weekly visit plan in advance and she had strict KPIs to meet.

All of the above resulted in Ms O’Hara feeling that she had no choice but to catch up with incomplete work on her own time. She started to work from home, working late into the evenings and over weekends to complete her reports. Her evidence was that she was working approximately 60 hours a week in breach of the OWTA.

During the WRC hearing, the Company’s evidence was as follows:

1. Ms O’Hara was wasting time doing unnecessary visits.
2. Ms O’Hara was inputting information to the system incorrectly.
3. Ms O’Hara was supposed to use an app which had a predictive text function to save time, however, Ms O’Hara insisted on using her laptop, which would take longer to input information.

It was clear that the employer was never satisfied with the employee’s performance on a weekly basis.

Ms O’Hara’s evidence including samples of emails that she sent regularly between 8 pm and 11 pm, and into the “small hours of the morning”. Her employer often replied to those emails.

Ms O’Hara confirmed that never filed a grievance, however, she felt that she could not do so because she remained on probation throughout her period of employment.

WRC finding
The Adjudication Officer reviewed Ms O’Hara’s average day and the requirements to visit sites etc.

It was held as follows:

1. There was no system in operation by the employer to record an employee’s hours of work.
2. On balance, she felt that the employer was well aware that Ms O’Hara was working in excess of her normal working hours.
3. The Adjudication Officer accepted Ms O’Hara’s evidence that on at least one particular date (28^th October 2016), the employer questioned her as to why she had sent an email at 3.51 am. As a result, the Adjudication Officer felt that the employer was fully aware that the employee was working excessive hours.
4. Given the employee’s gross annual salary of €40,000, equating to about €19 - €20 per hour over a 39 week period (her entire employment), the employee was then awarded €6,240 compensation.

Labour Court Appeal
The employer appealed the decision of the Adjudication Officer to the Labour Court. The employer repeated its position that the decision to work beyond the normal working hours was Ms O’Hara’s choice, and was unnecessary, as there was a more efficient procedure available to her.

In addition, the employer repeated its position that Ms O’Hara could comfortably have completed her work within the 40 hours that she was contracted to do so.

In making its decision, the Labour Court held as follows:

1. The employer had no record of Ms O’Hara’s working hours.
2. While the employer said that Ms O’Hara was not required to work the additional hours, they failed to provide any evidence about whether or not she actually worked the hours.
3. Ms O’Hara’s evidence, providing samples of emails showing her working from 5 pm to midnight on a regular basis, without any contradiction from the employer, was accepted.
4. In addition, the Labour Court held that the employer was aware that Ms O’Hara was working beyond her regular working hours and took no steps to prevent that. The Labour Court relied on the provisions set out in the OWTA: an employer “shall not permit” an employee to work beyond the maximum working week. There is no discretion on an employer.

In conclusion, the Labour Court upheld Ms O’Hara’s original complaint and dismissed the employer’s appeal.

The Labour Court went beyond the compensation awarded by the Adjudication Officer for what it saw as the “systemic nature of the breaches of the Act” involved. It increased the award and found that a more appropriate level of compensation was €7,500.

Key takeaways for Employers

1. Employers should actively monitor the hours worked by their employees, whether they are present or working remotely.
2. It is imperative that an employer keeps appropriate records for every employee’s working hours.
3. Employers should bear in mind that the average 48 hour working week can be calculated over a reference period of either four or sometimes six months in any twelve months. Longer reference periods may be used in certain circumstances such as seasonal work where there may be a spike in demand requiring employees to work longer hours.
4. When engaging senior level employees, it is useful to note that there is a provision within the OWTA enabling an employer to include a term in an employee’s contract of employment whereby the employee decides their own working hours. It is still possible for an employer to stipulate a minimum number of hours in the contract. In such a scenario, the employee will not receive the benefits of the OWTA. This is not a panacea for employers to address employees who are longer working hours. Previous decisions of the Court offer guidance on this exemption. In short, if an employer is directing its employee to complete so many tasks that it is obviously not possible for the employee to truly determine their own hours, the exemption will not apply.

This document is for general information purposes only and does not constitute legal or other professional advice. Specific legal advice should be sought on any particular matter.

For more information on the content of this Insight contact:
Deirdre Malone, Partner, deirdre.malone@rdj.ie, + 353 21 4802746