Emailing Outside Of Office Hours: How Do I Handle It?

Author:Ms Deirdre Malone
Profession:Ronan Daly Jermyn

Employers should take note of the recent decision in Kepak Convenience Foods Unlimited Company -v- Grainne O'Hara, WTC/18/18 ( 19th July 2018)

Background The Organisation of Working Time Act (“OWTA”) directs that an employer shall not permit its employees to work more than an average of 48 hours in any period of seven days. There are additional restrictions in terms of daily rest and night working hours, but for the purpose of this query, it is the 48 hour maximum working week that is relevant.

The Facts Ms O'Hara brought a claim to the Workplace Relations Commission (“WRC”). She joined Kepak Convenience Foods Unlimited (“the employer”) in July 2016 as a Business Development Executive. She had a written contract of employment (40 hours per week over five days). The contract contained a clause directing Ms O'Hara to cooperate with the employer's procedures for monitoring the hours that she worked. This is because a large part of Ms O'Hara's role was on the road, being out of the office visiting customers, clients, suppliers etc.

Ms O'Hara's contract of employment terminated before she had 12 months' service (April 2017). Her complaint to the WRC was that she worked well in excess of 40 hours every week in breach of the OWTA.

OWTA Complaint Ms O'Hara's case was as follows:

She was required to make up to five site visits with customers/clients a day. She was required to input information regarding her sales on a computer or tablet (in respect of which she was fully trained, according to her employer). Ms O'Hara found the process overwhelming and too complicated. She was obliged to map out her weekly visit plan in advance and she had strict KPIs to meet. All of the above resulted in Ms O'Hara feeling that she had no choice but to catch up with incomplete work on her own time. She started to work from home, working late into the evenings and over weekends to complete her reports. Her evidence was that she was working approximately 60 hours a week in breach of the OWTA.

During the WRC hearing, the Company's evidence was as follows:

Ms O'Hara was wasting time doing unnecessary visits. Ms O'Hara was inputting information to the system incorrectly. Ms O'Hara was supposed to use an app which had a predictive text function to save time, however, Ms O'Hara insisted on using her laptop, which would take longer to input information. It was clear that the employer was never satisfied with the employee's performance on a weekly basis.


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