Employers Beware: The Limits to Checking Emails Out of Business Hours

by Lynda Nyhan, Associate on the Employment & Benefits Team, Mason Hayes & Curran

In a decision just published, the Labour Court awarded an employee €7,500 for working in excess of 48 hours a week, contrary to working time legislation. The Complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this.

The Facts
The Complainant, a Business Development Executive for Kepak (the “Company”), was required to work 40 hours per week, under her employment contract. She spent a considerable amount of time travelling between customer sites in Dublin and Leinster. She was required to record her activities on the Company’s computerised reporting system.

The Complainant argued that she regularly checked emails from 5pm to midnight. Sometimes, she sent emails after midnight. Her employer regularly responded to these emails before 8am (before her start time). The Complainant claimed she regularly worked close to a 60 hour week. She submitted a number of emails evidencing how she worked excessive hours, as the emails were regularly sent and received outside of business hours. She sought a full copy of all emails from the Company, which were not provided.

The Company argued the Complainant should have been able to complete her workload within her contracted hours. The Complainant had been provided with comprehensive training to ensure she understood her duties so that she could (and should have) been able to complete her workload within her contractual hours. The Company also argued that the Company had a very efficient reporting system, but that the Complainant adopted a less efficient procedure, which may have increased her time on such tasks.

However, the Company could not contradict the fact that emails were sent by the Complainant, and responded to by the Company, outside of business hours. Further, the Company did not keep records in accordance with working time legislation. While the Company argued that the Complainant should have completed her work within her contractual hours, the Company did not address the question as to whether she worked excessive hours in the first place.

The Decision
The Labour Court found because the Company did not keep records in the format required by law, the onus was on the Company to prove compliance. It held that the Company was aware of the amount of hours the Complainant worked, but failed to take any action to curtail this. As such, because the Company failed to monitor her working hours, and failed to keep proper records, it permitted the Complainant to work excessive hours, in breach of the law.

The Labour Court increased the compensation previously awarded by the Workplace Relations Commission, from €6,240 to €7,500.

Comments
Employers must ensure that employees do not work excessive hours. This is a mandatory obligation imposed under working time legislation. Fundamentally, it is a health and safety measure. This decision serves as an important reminder to employers to monitor working hours, and to take active steps to curtail excessive working hours. It is also a good reminder for employers to keep proper records in accordance with working time legislation. It is almost impossible to defend working time claims, without records. Failing to keep proper records is also an offence.

About the author
Lynda is an Associate on the Employment & Benefits Team and advises on both contentious and advisory aspects of the employment relationship. Lynda regularly reviews company policies and procedures and advises on disciplinary and grievance matters, redundancy, dismissals and discrimination matters. She also has particular experience advising on managing workplace absence and performance issues. Lynda regularly represents clients before the Workplace Relations Commission and the Civil Courts on a broad range of employment issues.

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