With our office exodus comes concern over working hours
As the Dáil debates the Working from Home (Covid-19) Bill and the Government gets ready to publish their strategy on remote working , should employers consider putting in place a ‘right to disconnect’ policy.
AIB and the Financial Services Union have agreed a ‘right to disconnect’ policy, the first of its kind in Ireland. The policy outlines a number of measures, including avoiding lunchtime meetings, expectations that staff will only check and send emails during normal working hours and turning on ‘out of office’ messages when employees finish work.
So, if an employer is considering their own disconnect policy, what is the legislative position in relation to such a policy? The Organisation of Working Time Act 1997 implemented the European Working Time Directive into Irish law, providing employees with various protections to ensure they were not working excessive hours and that they were receiving sufficient breaks.
Under the Act, employees must be given a 15-minute rest break every 4.5 hours, a 30-minute break every six hours, 11 hours consecutive rest every 24 hours, and 24 hours consecutive rest every seven days.
There is also a mandatory 48-hour average weekly working limit which applies to all employees and, with very limited exceptions, cannot be contracted out of.
So, technically speaking, the right to disconnect is already enshrined in legislation.
The issue though, is that the Act was created in 1997, a time when the workplace and working practices were vastly different to how they are now. With the introduction of technology, these rights have gradually been impinged upon as work has become more accessible in terms of how, when and where your employees can work.
In 1997 it was easy to record employees’ working time, as it was mostly performed on site in an office, factory or shop. Nowadays it is nearly impossible, as work is conducted at various times, in various locations and on various devices.
The recent decision in the Kepak versus O’Hara case exposed the practice of excessive working hours as well as the weaknesses in relation to current reporting practices. The case concerned an employee who was found to have worked excessive hours, in breach of the Act, and was awarded compensation by the Workplace Relations Commission (WRC).
Ms O’Hara was employed by Kepak and contracted to work 40 hours a week. She outlined that she would regularly receive and respond to emails from before eight o’clock in the morning until after midnight.
She claimed that, as a result, she regularly worked in excess of the average of 48 hours per week permitted under the Act.
In responding, the company claimed that Ms O’Hara was contracted to work 40 hours per week and there was no obligation upon her, either contractual or otherwise, to work in excess of 48 hours per week. It further claimed that Ms O’Hara was working these long hours due to her own inefficiency.
In finding in Ms O’Hara’s favour, the Labour Court awarded her €7,500 in compensation for her employer’s breach of the legislation.
There were two notable outcomes from this case from an employer perspective.
The first related to the employer’s obligation to record their employees’ time under the Act. In practice, very few companies retain records in the prescribed format or at all and the Court found that where records aren’t kept in the prescribed format, the onus is on the employer to prove that they are compliant.
The second relates to the company’s defence that they didn’t require Ms O’Hara to work the hours that she worked. The Court found that the onus is on the employer to ensure that their employees are not working excessive hours. If not recording the hours, they may need to monitor employees’ working practices instead. If they choose the latter course of action, they will need to be proactive in addressing any excessive hours being worked, or performance manage the employee so that they work more efficiently.
This was a significant case and set alarm bells off with many employers, if it had become acceptable practice for their employees to work excessive hours during evenings and weekends, with no records on file and no action taken to address these practices.
The WRC’s annual report for 2019 indicated that complaints in relation to working hours are now the most prevalent complaint type, with 30pc of all complaints received last year relating to this issue. It said the 6,266 complaints in relation to working hours in 2019 represented a three-fold increase on the number received in 2018 (2,026).
More recently, trade union Fórsa conducted Ireland’s largest ever employee opinion survey on remote working, with 86pc of respondents indicating that they would like to work remotely in some format. As part of the survey, respondents were asked about their concerns when it came to working from home.
The second biggest concern (42pc) was that it would be harder to disconnect from work calls or email. It is evident that disconnecting from work is an issue for employees in the modern work environment, where technology has enabled an “always on” culture.
While there is no legal right to disconnect at present, the Working from Home Bill will seek to address out-of-hours communications. However, employers are still obliged to ensure that they are in compliance with the Organisation of Working Time Act, with the Kepak decision further emphasising this.
Taking all of this into consideration, implementing a ‘right to disconnect’ policy at company level could be an effective method of ensuring compliance and prevent your employees from working excessive hours. This could be particularly important in the current circumstances where remote working has become the norm and employers have less oversight of their employees’ working practices.
Ger Connolly is employment law partner at Mason Hayes & Curran LLP.