I am the HR Manager at a large organisation. All our senior employees are issued mobile phones for work use. One senior employee has complained about regularly having to answer emails outside of his contracted hours in the office and that it’s becoming part of his job – how do I handle it?

The “work phone” is an established part of the modern workplace. Smartphones allow employees to be connected and contactable anytime, anywhere and are effectively pocket-sized offices – allowing employees to answer emails, word process, time-record and much more, easily and remotely.  Moreover, the ability to be contactable is often accompanied by an expectation on employees to actively respond to work calls or emails out-of-hours – which can be unpopular!

This complaint sounds like a grievance and you should treat it as such.

Firstly, you should consider whether or not there is a “requirement” on this employee to respond to emails outside of office hours. In many businesses, there will not be a hard, contractual obligation, but rather an expectation on employees to be contactable – an expectation that rises exponentially with more senior staff. This was considered recently by the Irish Labour Court in Kepak v Grainne O’Hara.
In this case, the employee argued that her weekly working time had increased to around 60 hours because of out-of-hours emails. Her employer unsuccessfully argued that she was not “required” to respond but did so of her own accord. However, the Court found that emails sent by the employee and responded to by her employer out-of-hours evidenced a “requirement” on her to read and respond.

You should then consider the impact on their working time. You must ensure this employee does not exceed the 48 hour weekly limit set by the Working Time Regulations (NI) 2016 and that he is observing the statutory rest-breaks. Where senior employees are concerned, you should check if their working time is “unmeasured” in their contracts of employment, thus allowing them to work beyond 48 hours each week. You should also check if this employee has signed a working-time opt-out, which has the same effect.

Secondly, you should consider the potential health and safety impact of regular out-of-hours working upon this employee, and in particular the risk of “burn out”. You should put in place clear policies for employees on what is expected of them, reducing the potential for stress at work claims or spells of sickness absence due to stress.

If regular out-of-hours work is being required of this employee, you need to look at the issue of their remuneration. Where you have an overtime scheme in place, you will need to consider its applicability. Similarly, if you have a time-recording system which is linked to a bonus scheme, you will need to consider the financial impact of this employee regularly working additional hours. Of course, there is also an overarching requirement to pay the national minimum wage, although this is not usually an issue where senior staff members are concerned.

Additionally, you should consider the importance you place on out-of-hours connectivity when you award discretionary bonuses or promotions. Employees with childcare responsibilities or disabilities may be less able to respond out-of-hours, and thus actively rewarding employees who never “switch off” could prompt a grievance or indeed a discrimination claim.

Whilst Kepak has no application in Northern Ireland, the Labour Court made its decision based on European law which does have effect here and in a manner consistent with legislation passed in France on the same issue. It is a matter of time before a similar case is brought in the United Kingdom. It is possible that Parliament or the Assembly could, as in France, provide employees with the “right to disconnect”. This is an area worth watching – keep your phone ready!