Employer falls foul of the Organisation of Working Time Act 1997

Author: Siobhán Lafferty

August 10, 2018

A recent case at the Labour Court has highlighted the issue of weekly working limits and the increased use of emails outside working hours. The case of Kepak Convenience Foods Unlimited Company v Grainne O’Hara (DWT1820) is a stark reminder to employers to consider the number of working hours which their employees undertake consistently over a week long period.

The Labour Court case was an appeal of the Adjudication Officer’s decision ADJ-00008654. The Adjudication Officer found in favour of the Complainant and had made an order for compensation in the amount of €6,240. Both the Complainant and the Respondent appealed the decision; with the Complainant appealing the amount of compensation and the Respondent appealing against the decision as a whole.

The Complainant’s contract of employment outlined that she was required to work 40 hours per week in her role as Business Development Executive. Her role entailed travelling between customer sites in Dublin and the Leinster area, as well as having to record her activities and engagement with customers on an electronic reporting system. As a result, she argued that was expected to work in excess of the 48 hour statutory maximum which is outlined in section 15 of the Organisation of Working Time Act 1997 (the “Act”). At the heart of the case was the issue of her having received and replied to emails between 5pm and midnight on a number of occasions – hours which fall outside her normal working hours.

The Respondent argued that the work carried out by the Complainant was in line with the work which other employees carried out, none of whom worked in excess of the 48 hour maximum set out in the Act. They argued that she could have ‘comfortably completed’ her work within her contracted hours, and that she chose to do her administrative tasks in an inefficient manner. It was submitted that her volume of work could not have exceeded 48 hours per week.

The Court examined section 15, which sets out the 48 hour weekly limit, and section 25, which outlines an employer’s obligation to keep records to show compliance with the Act, when considering this case. As a result of the Company’s failure to keep records relating to her hours worked, the onus was on the employer to show that they complied with the Act. The Court was not satisfied with the Respondent’s evidence and held that the Respondent was aware of Ms O’Hara’s working pattern and that they failed to keep a proper record of her hours and therefore permitted her to work in excess of the statutory maximum hours. The Court upheld the complaint and slightly increased her award to €7,500.

This case highlights the importance, firstly of maintaining good records in relation to working hours so as to be able to defend such a claim, but also of the need to keep an awareness of work being done outwith office hours. It has been suggested that smartphones cause employees to work longer through being contactable on emails. Employers should be mindful of this to ensure employees are not working beyond the 48 hour statutory limit on a regular basis to avoid claims being brought under this Act.

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