A Kepak exec won a €7,500 payout after a dispute about checking emails out of hours
An employment law expert called the ruling a “wake-up call” for businesses.
A BUSINESS EXECUTIVE at a subsidiary of meat producer Kepak has been awarded €7,500 over being required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.
At the Labour Court, Kepak Convenience Foods Unlimited Co has been ordered to pay former business development executive Gráinne O’Hara €7,500 over repeated breaches of the Organisation of Working Time Act.
Employment law expert and solicitor Richard Grogan said today that the “excellent, very clear and precise” Labour Court ruling “will serve as a massive wake-up call to employers who expect employees to be available 24 hours a day, seven days a week”.
He said: “The law is very clear. Employees are entitled to an uninterrupted eleven-hour break between finishing work and starting work the following day.”
Grogan said that employers have left themselves “open to claims when requiring employees to be available 24/7. It is a health and safety issue”.
In the case, O’Hara’s contract of employment with Kepak, the firm required her to work 40 hours per week but she argued that she worked close to 60 hours a week, sometimes dealing with work emails after midnight.
In support of her complaint, O’Hara submitted copies of emails that she sent to and/or received from her employers both before normal start time and after normal finish time on numerous occasions over the course of her employment.
According to the Labour Court, these emails ranged from 5pm to midnight in most cases, but instances of emails sent after midnight were also included in the documents.
In addition, O’Hara submitted that emails that were sent to her employers and responses that were received from her employer before 8am.
Daily pattern
O’Hara told the court that she sought a full copy of all of her emails that she said would demonstrate this was a daily pattern. However, she said that she was not provided with a copy of those emails.
O’Hara commenced work with the Kepak firm at its Blanchardstown facility in Dublin in July 2016. As part of her work, O’Hara spent a considerable part of her time travelling between customer sites in Dublin and Leinster. Her employment ended on April 14th 2017.
In response to O’Hara’s claims, the Kepak firm submitted that the volume of work undertaken was in line with that carried out by other members of staff, none of whom worked in excess of the 48 hour maximum set out in legislation.
O’Hara’s immediate manager at the company, Colm Conneely told the court that O’Hara had been inducted into the company through a comprehensive training programme. He added this induction was designed to ensure that she understood her duties and was capable of undertaking them within the statutory working week.
Conneely told the court that O’Hara was taught how to use the company’s reporting system in the most efficient manner but that she chose to adopt a less efficient procedure for completing her administrative tasks.
He said that this may have increased the time she spent on such tasks. Conneely submitted that the volume of work could not have exceeded 48 hours per week.
In its findings, however, the Labour Court noted that the Kepak firm did not produce a full file of O’Hara’s emails and offered no evidence to contradict her evidence in this regard.
The court also said that it found O’Hara to be “a credible witness and accepts her evidence in this regard”.
Aware
The court said that the Kepak firm was, through O’Hara’s operation of its software and through the emails she sent it, aware of the hours O’Hara was working and took no steps to curtail the time she spent working.
It added that the Kepak firm breached the Organisation of Working Time Act by permitting O’Hara to work beyond 48 hours a week.
O’Hara was appealing the quantum of an adjudication officer’s ruling that she be awarded €6,240, while Kepak was seeking to have the adjudication officer’s ruling overturned.
O’Hara argued that the officer did not award her sufficient compensation “for the systemic nature of the breaches of the Act involved in the case”.
In its ruling, the Labour Court has increased the adjudication officer’s award by 20% to €7,500.
Not involved in the case, Grogan said today: “Any employer who expects their employees to be available 24/7 is creating a serious health and safety risk.”
The solicitor said that it is common place for employers to provide phones, laptops and tablets to employees as part of the 24/7 availability “and some of them would have employees take a work call in the shower if they could”.
