20 Dec Will You Be Checking Your Emails Over Xmas?

As we approach the Xmas shut down period when a significant number of employees will be on a break from their workplace, the issue of employees digital rights is very much on the agenda at the moment, with the Department of Business, Enterprise and Innovation committed to exploring putting the right to disconnect on a potential statutory footing, as we all potentially can remain always “switched on” with our smart phones never too far away.

A number of countries have already formalised restrictions on the rights of employees not be contacted by their employers outside of working hours, and most notably France who legislated in this area in 2017, with employers who have over 50 employees, required to set fixed periods when employees are not obliged to send or respond to emails.

In Ireland at the moment, whilst employee digital rights are not expressly dealt with, the Organisation of Working Time Act, 1997 (OWTA) sets out clear rules in respect of maximum working time, breaks, rest periods and annual leave, and employers must maintain records to support their compliance with the OTWA. In this regard the 2018 Labour Court ruling in Kepak Convenience Foods v Grainne O’ Hara is a very useful case to review, as it largely deals with breaches of the OWTA, that arose on foot of excessive hours being worked when the employee was required to send emails between 5:00 pm and midnight, outside of her contracted 40 hours per week, as well as in the morning time before starting work. The employee traveled extensively in a business development role, and then had to deal with email correspondence and system requirements outside of working hours. Whilst the employer argued that the employee should have been able to complete her required duties within her standard hours, if she worked more efficiently, the Labour Court disagreed and said the employer was fully aware by the timing of her emails that the employee was working excessive hours (above the maximum average 48 hours permitted per week), and took no measures to curtail her working time and therefore permitted a number of breaches of the OWTA. The employer also did not maintain proper records of working hours. The employee was awarded €7,500 compensation.

So whilst we await further developments from the Department of Business, Enterprise and Innovation in this area that may provide some guidance around how employers may statutorily or otherwise need to deal with the right to disconnect, employers should be proactively thinking ahead, and in the interest of ensuring that employees get adequate opportunity to switch off and avail of their rights under the OWTA, may consider some of the following measures:

• Provide guidance to managers on OWTA obligations and the rights of employees;
• Consider whether you have a culture of an “immediate response” being required and start managing expectations that this may not be permissible going forward (including with clients);
• Let employees know that they don’t have to respond to emails out of hours. This can be included in employee handbooks and relevant policies;
• Ensure that working time records are maintained; and finally
• Why not set a good example and switch the lap-top or phone off after work.