The 48 Hour Working Week- Where Are We Now?
A recent judgement of the Labour Court in IBM Ireland v Michelle Svoboda is instructive for employers with regard to working time. The Labour Court case related to employees who are not covered by the 48 hour working week restriction which arises under the Organisation of Working Time Act 1997. The maximum 48 hour working week (averaged as permitted over 4/6 months) aims to protect the health and safety of employees at work.
Employees who are in charge of their own working time are not governed by the 48 hour week restriction. This generally is construed as senior management. However, there remains a lack of clarity as to who precisely, amongst various categories of employees, is governed by the maximum permitted hours restriction, and who falls outside of it.
In the UK, a head chef who managed a pub restaurant was not governed by the 48 hour restriction, but a sales rep was subject to the maximum weekly working hours restriction. This uncertainty has led the UK to rely on an individual “opt out” for staff, which is used widely. However, the opt-out for individuals in the UK is not available in Ireland.
The Labour Court case arose in that context. Ms Michelle Svoboda was working as a telesales specialist with IBM, and claimed that due to her heavy workload, over time she felt obliged to work longer and longer hours without breaks to reach her sales target. It was accepted by IBM that Ms Svoboda worked more than her contractual 39 hour week. IBM submitted that as a member of the sales staff, she was given flexibility to determine her own working hours and breaks. The Company said she had not been given any additional tasks over and above her normal duties.
The Labour Court interpreted the application of the maximum 48 hour working week strictly. It said that an employer must prevent an employee working over 48 hours weekly. The Labour Court reiterated the general principle that it is no defence for an employer to claim that it did not know an employee was working excessive hours. Employers are obliged to keep up to date records of employees working hours and the onus is on an employer to prove compliance with this and to produce records of work times, breaks, holidays etc for a period of 3 years for each employee.
However, in this case IBM had requested Ms Svoboda to restrict her hours to 39 hours per week which she ignored and the Company withdrew her remote access. Eventually Ms Svoboda was instructed by the Company not to attend work outside her 39 hours a week. The Labour Court said IBM could have done this sooner. It found there was a technical breach of the Act, but it was not culpable in that Ms Svoboda was primarily responsible for what happened.
Employers have a clear obligation to monitor the working hours of all of their staff, even those it may consider are possibly exempt from the maximum hourly working week, because they are considered to be in charge of their own working time. It is preferable for employers to consider all employees working hours in the context of any monitoring and recording arrangements, given the lack of clarity about who is considered to be in control of one's own working time. This obligation is particularly important for employers in defending stress claims by employees which frequently blame overwork and excessive workloads as contributing to their injury.
If you have any queries in relation to working time arrangements for employees or any other employment law queries, please contact a member of our employment department
Davnet O’ Driscoll
Associate Solicitor
dodriscoll@hayes-solicitors.ie