'Massive wake-up call to employers': Worker wins €7,500 award over post-midnight work emails

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By Gordon Deegan

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 11-hour break between finishing work and starting work the following day.”

Mr 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, Ms O’Hara’s contract of employment with the Kepak 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 mid-night.

In support of her complaint, Ms 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, Ms O’Hara submitted that emails that were sent to her employers and responses that were received from her employer before 8am.

Ms O’Hara told the court that she sought a full copy of all of her emails that she stated would demonstrate that this was a daily pattern and her former employer would have been aware of.

However, she stated that she was not provided with a copy of those emails by her former employer.

Ms O’Hara commenced work with the Kepak firm at its Blanchardstown facility in Dublin in July 2016 and as part of her work, Ms O'Hara spent a considerable part of her time travelling between customer sites in Dublin and Leinster.

Ms O’Hara's employment ended on April 14, 2017.

In response to Ms O’Hara's claims, the Kepak firm submitted that the volume of work undertaken by Ms O'Hara was in line with that undertaken by other members of staff none of whom works in excess of the 48-hour maximum set out in legislation.

Ms O’Hara's immediate manager at the company, Colm Conneely told the court that Ms O’Hara had been inducted into the company through a comprehensive training programme that was designed to ensure that she understood her duties and was capable of undertaking and discharging them within the statutory working week.

Mr Conneely told the court that Ms 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.

Mr 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 Ms O’Hara’s emails and offered no evidence to contradict her evidence in this regard.

The court also stated that it found Ms O’Hara to be “a credible witness and accepts her evidence in this regard”.

Accordingly, the Court found that the Kepak firm was, through Ms O'Hara's operation of its software and through the emails she sent it, aware of the hours Ms O'Hara was working and took no steps to curtail the time she spent working.

The court found that the Kepak firm breached the Organisation of Working Time Act by permitting Ms O’Hara to work beyond 48 hours a week.

The court found that Ms O’Hara’s complaint was well founded.

Ms 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 completely.

Ms O’Hara argued that the Adjudication 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, Mr 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”.

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