The short answer is no, but the catchy title – and recent judgments against European employers – merit a closer look at this topical issue.
In a recent widely reported case, an Irish employment tribunal fined an employer €7,500 (nearly $9,000) for breaches of Ireland’s working time laws (which are broadly similar to the United Kingdom’s equivalent statutory requirements, with both based on European Union law). Briefly, the Irish legislation defines a rest period as any time that the employee is not working. Mandatory rest periods mean employees are entitled to 11 consecutive hours of rest in any period of 24 hours (as is required in the UK too).
The plaintiff was a business executive for a major Irish company. She claimed she was regularly required to check work emails outside of business hours, often after midnight and on weekends. Over the relevant reference period, the court found that she was not getting her required rest periods and was also working in excess of the maximum 48 hour working week. A key factor in the case was the employer’s lack of adequate time records to refute the clear evidence presented by the employee.
This Irish employee’s case is not uncommon for many businesses. Although sometimes the reason for unusual working hours is the sheer volume of work, more often companies simply don’t care when employees are working as long as they hit deadlines. Early birds and night owls both get to have their way. Work can be paused until the kids are in bed and resumed when the house is quiet. It’s flexible working, and it’s here to stay. With only 6% of UK workers now clocking in for a “9-to-5” shift, the popularity with both employers and employees is obvious.
However, this case from Ireland is not an isolated incident of flexible work clashing head on with working time rules. A French company, for example, was ordered to pay a former employee €60,000 (roughly $70,000) for failing to respect his right to “switch off” after work. The employee asserted a claim under France’s new right to disconnect law. In that case, although the company did not consider the employee “contactable” afterhours, the court ruled that the employee was on call because he was listed, along with his contact details, as someone to be reached in an emergency.
In the UK, a recent survey revealed that a third of employees felt that they could not switch off in their personal time, with 40% checking their work mobile or emails at least five times a day outside of work hours. With these figures highlighting the scale of employee engagement outside of traditional office hours, it is only a matter of time before similar cases come to the UK courts.
So, what can employers in Ireland and the UK do? There is no masking the tension between strict working time rules and increasingly flexible work practices. Can you have a flexible working arrangement and not run afoul of the law? The answer is certainly yes, but some foresight and planning is required.
Employers should consider monitoring unusual staff behavior. Even as flexible working blurs the line between personal and work time, managers should watch for “red flags,” such as calls or emails at irregular hours or the early signs of burnout. Usually these types of disputes arise only after an employee falls ill due to overwork. Employers should be proactive: dealing with the underlying cause will be more effective than treating the symptoms.
Although neither Ireland, nor the UK, have a “right to disconnect” law like France, managers should consider reminding employees that they are entitled to their down time. In turn, employers should be aware of their working time obligations and facilitate compliance with them, such as permitting employees fixed “uncontactable” hours. Flexible working should also mean employees can maintain normal working hours if they please.
The thought of rolling back on flexible working is unpalatable for most. From a commercial perspective, the advantages of workers being able to flexibly respond to the company’s needs presumably outweigh the risk of breaching rules on working time. Therefore, HR departments should carefully consider what they can do to monitor and respond to overworked employees rather than throwing the baby out with the bathwater.