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External Email Access v. Working Time Regulations – What should Employers do?

The recent Labour Court decision of Grainne O’Hara v Kepak Convenience Foods Unlimited Company which was a cross appeal by both parties, has caused widespread concern amongst employers.

The employee submitted evidence of emails between her and her former employer that were sent on a regular basis after 5pm and up to midnight, and other emails which showed contact after midnight and before normal starting time. The Respondent did not provide a full file of her emails and could not rebut her email evidence. The Respondent’s failure to keep proper records of her working hours and its failure to monitor and curtail her excessive working hours, was determined as permitting the Complainant to work in excess of the statutory maximum of 48 hours per week and she was awarded €7,500.

Advice for Employers?
Flexibility of working hours is an important factor in many workplaces today and to facilitate such flexibility external access to work email and systems is often required. This decision should not be a deterrent to flexible working arrangements but should simply make employers more mindful of employees’ total working hours and rest breaks. The Labour Court in this case noted that the employer was aware that the employee was working in excess of 48-hours per week but took no steps to curtail the time she spent working.

In order to avoid a similar situation occurring, employers should consider the following points regarding granting external access to work emails and the system:

It is clear from this decision that amendments to the provisions of the Organisation of Working Time Act to take into account the use of technology and flexible working arrangements together with the health and safety of employees. Flexibility in the workplace is important for both employees and employers. This case should not be seen as a backward step in this regard. It is important in a number of workplaces that employees have external access to office emails and systems. The above points should assist employers in ensuring their employees get the required rests and mitigate any potential liability in this regard.

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
30th August 2017

Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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