Why employers must tell staff to switch off after hours

Posted by Lindsey Knowles

Partner, Head of Employment Law at Kirwans Solicitors

Mon 29th, Oct

For employers, it’s second nature to check emails at least every 30 minutes, no matter what time of the day, or day of the week it is.

However, courts in Ireland and France have recently ruled that employees should not feel under the same pressure – and have heavily penalised companies that fail to recognise their right to ‘switch off’ outside of office hours.

In August, a business executive employed at a subsidiary company of meat producer Kepak in Ireland was awarded €7,500 after successfully arguing that she was required to respond to emails out of working hours, including some after midnight. This meant that her working hours went over the maximum 48 hours a week set out in Irish law.

The case followed a similar one in France in July, brought under the country’s new ‘right to disconnect’ law, which saw Rentokil ordered to pay a former employee €60,000 (£53,000) for failing to respect his ‘right to disconnect’ from his phone and computer outside office hours.

The judgements have caused shockwaves among businesses around the world as bosses have been forced to question whether they too are guilty of expecting their employees to provide a swift response to emails – no matter whether they are officially working or not.

Although neither of these cases directly affect English law, now that the issue has made its way through the judiciary system abroad, it’s highly likely that it won’t be too long before similar cases are brought before the courts here, meaning that firms need to take action now to avoid being penalised in the future.

Looking again overseas, companies such as Volkswagen and Daimler in Germany have led the way in self-protection by introducing bold email policies that prevent employees being contacted via email once they’ve left the office.

In 2012, Volkswagen agreed to stop its Blackberry servers sending emails to some of its employers when they were off-shift, while in 2014, Daimler introduced its much-heralded ‘Mail on Holiday’ policy, which gives employees the option to set their emails to auto-delete while away from the office in order to avoid facing an overflowing inbox on their return.

Last year, Uwe Hück, head of Porsche’s works council and deputy chairman of Porsche’s supervisory board, mooted the idea of the firm’s employees being protected from work-related emails out of hours, with any correspondence between 7pm and 6am being returned to the sender.

But what of the employees who prefer the flexibility that out-of-hours emails can bring? Those who have loosely-termed agreements in place that they can, for example, leave early to collect the children from school on the understanding that they’ll pick up any emails later on in the evening?

It’s a difficult balance to strike, but the recent cases have made it clear that any such agreement should form part of an employee’s contract and that the practice of regularly sending work emails out of hours should be brought to an end.

The need to stop and think before dashing off an email will be a culture change for some; but it’s a necessary one if employers are to protect their business from the prospect of hefty legal penalties.

Lindsey Knowles is Head of Employment Law at Kirwans law firm

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