A Labour Court decision has highlighted the obligation on employers to ensure that employees do not work more than their statutory maximum working hours. Paul Gough takes a look at the case.

In Brief: The Organisation of Working Time Act 1997 stipulates that the maximum average working week is 48 hours as an average over a four-month period. An employer shall not “permit” an employee to work in excess of 48 hours in the relevant statutory time period. Employers need to be aware that emails and calls outside of normal working hours may breach the provisions of the Act. Employers should consider keeping records of working hours.

For many employees emails and calls outside of normal working hours, whether late at night or at weekends, have become part of normal working life. However, a recent decision of the Labour Court highlights the obligation on employers to ensure that employees do not work more than statutory maximum working hours. This highlights the role of after-hours emails and phone calls.

The Organisation of Working Time Act 1997 (“the Act”) stipulates that the maximum average working week is 48 hours as an average over a four-month period. The employee in this recent Labour Court case claimed that she worked in excess of the maximum hours during her employment with Kepak Convenience Foods.

She was employed as a Business Development Executive and under the terms of her contract she was required to work 40 hours per week. However, she claimed that in addition to her regular working hours she was required to send and respond to emails outside of those hours. In support of her complaint she submitted copies of emails that she sent and received from her employer, on numerous occasions, both before and after her normal working hours, including emails sent and received late at night and early in the morning.

The employer argued that the volume of work undertaken by the employee was in line with that undertaken by other members of staff, none of whom worked in excess of the maximum working week. The employer submitted that she could have comfortably completed her work within the contracted 40 hours each week. It claimed that the employee chose to adopt a less efficient procedure for completing her administrative tasks and argued that this may have increased the time she spent on such tasks.

However, significantly, as the employer did not keep records of the employee’s working time the onus was on the employer to prove that it had complied with the Act.

In the decision the Court noted that the Act states that an employer shall not “permit” an employee to work in excess of 48 hours in the relevant statutory time period.

The Court noted that while the evidence submitted by the employer might demonstrate that the work assigned to the employee did not require her to work the alleged hours, it did not address the question as to whether she actually worked those hours or not. It found that the employee’s evidence was supported by the emails and documents that she had produced and that the employer had not submitted anything to contradict that evidence.

The Court determined that the employer was aware of the employee’s working pattern and by its failure to monitor and curtail it, and by its failure to keep proper records of her hours of work, “permitted” her to work in excess of the statutory maximum hours and awarded her €7,500.

There are a number of key points to take away from this case.

Where an employer does not keep statutory records of employees working hours, the onus will be on the employer to show that it complied with the Act. In the absence of records, it will be very difficult to prove compliance.

The Act states that the employer shall not “permit” an employee to work in excess of the maximum working week. This is an active obligation on employers to ensure that their employees do not work excessive hours and employers need to consider how they can meet that obligation. It can be problematic where employees are working with colleagues in different time zones as calls and emails will often, by necessity, take place outside of normal hours. It might be time for some employers to consider putting an out of hours email policy in place.

The Court was not asked to address the issue of the employee’s daily rest periods. Under the Act an employee is entitled to an unbroken 11 hour rest break and clearly being required to reply to late night emails could put an employer in breach of the Act.

While claims of this nature are rare, the case is a reminder to employers that they have an obligation to ensure that their employees do not work excessive hours.

If you require any further information please contact Paul Gough, Senior Associate Solicitor, Employment and Pensions Unit.