In December 2019, the Department of Business Enterprise and Innovation published a report entitled “Remote Work in Ireland”, which defined remote working as a “form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis”.
Remote working includes both working from home or working from another location that is not your office, i.e. a community hub or co-working space.
Much has changed since the publication of that report, with the COVID-19 pandemic resulting in an unprecedented and unplanned exponential increase in homeworking, which looks set to continue for the foreseeable future.
As a consequence of the pandemic, many employees have been trying to juggle home-schooling, childcare and remote working during traditional office hours. Employers were forced to implement temporary flexible remote working arrangements at short notice for almost all of their workforce.
These ad hoc arrangements have now continued for much longer than many envisaged. It is now clear that many employees will seek longer-term remote and flexible working options, which will allow them to plan where, how and when they work. The question arises as to whether employers are complying with the strict legal requirements imposed under the Organisation of Working Time Act 1997 (Working Time Act) under these new remote and flexible working arrangements.
Pursuant to the Working Time Act, employers are obliged to record working-time information for each employee on a daily basis, including starting and finishing times, rest breaks, daily breaks and weekly breaks. This information must be retained for three years. The information can be recorded electronically or in manual form.
Many employers who had workplace-based clocking in and clocking out systems to record the working hours and breaks of their employees, are now faced with the challenging requirement to record information for a totally remote workforce. Employers’ obligations under the Working Time Act apply regardless of where their employees are located or what new flexible work patterns have been implemented.
Not only must employers record their employees’ working hours and breaks, but they must also ensure compliance with the specific provisions of the Working Time Act. Therefore, if an employer discovers that the average maximum number of hours that an employee is working in a working week is in excess of 48 hours, then action needs to be taken. Similarly, if an employer is aware that an employee is not availing of their daily or weekly rest breaks, it is imperative that the employer deals with this.
Steps for Employers to Regularise Arrangements
The following steps should be considered by employers in order to ensure compliance with working time legislation.
Employers also need to be conscious of an employee’s right to disconnect. Given the sudden increase in remote and flexible working arrangements, many employees are unfamiliar with this style of working and may find it difficult to disconnect from work because they no longer physically leave the office and their devices are always accessible at home -- days, nights and weekends.
The Working Time Act requires that employees receive a minimum daily rest period of 11 consecutive hours per 24-hour period, so requiring or even permitting employees to regularly perform work and respond to emails late at night after a full day’s work, may result in liability for the employer.
The Labour Court determination of Kepak v O’Hara in 2018 illustrates how an employer can be held liable for its failure to stop the excessive working of its employees. It is evident from the Kepak case that whilst training on how to manage working time efficiently is helpful, it may not be sufficient, and employers are expected to monitor and actively curtail an employee’s excessive working hours.
Managers should be familiar with employers’ obligations under the Working Time Act and given appropriate training to ensure that they are:
The WRC and the Labour Court have made it clear that the onus is on the employer to prove compliance with their obligations under the Working Time Act and proof is necessary to defend any statutory claim. As employers who have breached the working time provisions may have to pay compensation of up to two year’s remuneration and may face multiple claims across their workforce for such breaches, together with fines for failure to keep appropriate records, it is vital that employers review their systems and policies to ensure that employees’ working arrangements are in line with legal requirements and are properly recorded.
For more information please contact Jennifer O'Neill at firstname.lastname@example.org.
This article was first published by Legal Island in September 2020.
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