Moving towards a “The Right to Disconnect”: A step too far?


Kepak Convenience Unlimited Company -v- Grainne O’Hara [2018] ADJ- 00008654

In a decision made earlier this month, the Labour Court upheld an award of €7,500 in favour of the Complainant against her former employer for working more than 48 hours in a week by merely checking and responding to her emails outside her contracted working hours on a regular basis. The Court found that in doing so, it was deemed to be a clear breach of section 15 of the Organisation Working Time Act 1997 [hereafter referred to as the “1997 Act”]. This landmark decision in the context of working time, represents a further obligation on the employer to ensure that their employees adhere to the statutory period set out under the 1997 Act and that something as routinely as sending emails could constitute a breach the statutory rest breaks.

The Facts
The Complainant, a business executive for Kepak, began her employment in July 2016 and was contracted to work for 40 hours a week. The Complainant as part of her work, travelled on a regular basis throughout Dublin and Leinster, recording her working time on a computerised system. The Complainant argued that whilst employed, she consistently sent emails both before and after her start and finishing time contrary to the provisions of the 1997 Act and her contract of employment, alleging she worked close to 60 hours a week.
On Appeal from the WRC, Kepak contended that the volume of work undertaken by the Complainant was able to be completed by other members of staff comfortably within their contracted 40 hours a week. Furthermore, the Company provided evidence that the Complainant underwent detailed training to ensure she was capable of handling and discharging her duties within the statutory working week. However, the Complainant provided a series of emails which detailed a clear pattern of the Complainant working outside her contracted hours, ranging from 5pm to 12 midnight on a number of occasions.
The purpose of the 1997 Act is to regulate employees working time by placing a heavy onus on employers to ensure that their employees are afforded a specified time away from the office for rest and relaxation. More specifically, section 15 requires employers to work no more than 48 hours a week over a specific reference period.
The pattern emails the Complainant provided highlighted a clear breach of this section. Whilst the evidence adduced by the Respondent may demonstrate that the work assigned to the Complainant did not require her to work more than her contractual hours, they failed to address the question as to whether she worked them in the relevant period. On that basis, the Court held by virtue of the employer’s lack of proper records as required by the 1997 Act and the Complainants working week being in excess of 48 hours contrary to her contract of employment, Kepak was in breach of section 15 of the 1997 Act.

Therefore, in consideration of such, the Labour Court increased the WRC award of €6240 euro to €7500 in favour of the Complainant.


The Effect of this Decision
Upon reflection, this poses as an important reminder for employers to ensure that employees working time is accurately monitored and adhered to in accordance with the provisions of the 1997 Act, otherwise they expose themselves to spurious claims therein. Although potentially onerous for particular organisations who often rely on this level of flexibility from their workers, it seems this decision represents a dynamic shift in favour of employee’s health and safety.
Interestingly this decision seems to be in line with the aptly dubbed “right to disconnect” which has been introduced across several countries in Europe. In 2017, France brought into force legislation that now requires companies with more than 50 employees to draw up a charter of good conduct, setting out the hours when staff are not supposed to send or answer emails. Even Volkswagen in 2014 introduced a system whereby all email servers were automatically turned off in furtherance of their employee’s work and life balance. This liberal stance adopted by the Labour Court seemingly aims to reduce the intrusion of work-related digital devices after working hours to balance workers’ professional and personal lives.

Although a step in the right direction for over worked employees, it fails to account for the reality of modern employment contexts. With the increasing means of accessibility, there is an expectation held by employers for employees to be consistently “switched on” as a result of the ever-diminishing conventional work hours that are being slowly eroded. Are employers now leaving themselves exposed legally by requiring employees to be “logged in” after hours and even over the weekend. If anything, it serves as a reminder for employers to adhere to the strict provisions of the 1997 Act and to keep accurate and detailed records of their compliance with the provisions at all times therein.

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