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The plight of the over-burdened “always on” British worker feverishly checking emails on their long commute home and struggling with incipient mental illness has recently been highlighted by certain international comparisons. These demonstrate a marked contrast in the legal regimes applicable to workers in other countries in relation to the regulation of working hours and the positive duty on employers to ensure that their employees do not work excessive hours.

The standard 35 hour week in France is well known although it is possible for employees to agree a longer working week.  Special rules apply to “autonomous executives” being those who are able to freely organize their working time however restrictions brought in by the “Loi travail” of August 2016  set out rules for monitoring workload  of employees in the event that no sufficient provision is provided for by a collective agreement.  In Ireland the Organisation of Working Time Act (which implements the EU Working Time Directive) provides significant protection for employees who may be required to work in excess of 48 hours a week on average. The Irish Independent reported on 2 August the case of a business executive, Grainne O’Hara, employed by a meat producing company, Kepak who was awarded Euro 7,500 for being required to deal with out of hours work e-mails including some after midnight that led to work in excess of 48 hours a week on average. The focus on e-mail traffic was particularly significant because, although dealing with emails can be done anywhere and may not be regarded as “work” by many, the effective requirement to deal with emails arriving before 8am and going on after midnight formed the evidential basis for her successful claim. The Irish court found that Kepak was, through Ms. O’Hara’s operation of its software and through the emails she sent, aware of the excessive hours she was working and took no action to curtail this. The company’s arguments that Ms.  O’Hara was taught how to use the Company’s reporting systems in the most efficient manner but that she chose to adopt a less efficient process for completing her tasks increasing the time she spent on them failed.

In the UK the Working Time Regulations 1998 implementing the EU Working Time Directive do provide minimum protections and require an employer to take all reasonable steps in keeping with the need to protect worker’ health and safety to ensure  that each worker’s average working time does not exceed 48 hours (Regulation 4). However the ability for employees to “voluntarily” opt out of this can effectively release employers from the obligation to closely monitor working hours.  Even if no opt out is in place it seems clear that a UK employee who has been required to work in excess of the 48 hour average would not be able to bring the sort of claim that Ms. O’Hara did in Ireland and the only remedy might be to bring a claim for unlawful detriment or dismissal if they are penalized for complaining about hours or refusing to work in excess of the 48 hour average. Case law has indicated that breach of the employer’s duty in relation to Regulation 4 does not give rise to a cause of action in the civil courts for breach of statutory duty.

The scheduled departure of the UK from the EU in March 2019  will open the possibility of existing regulation of working hours in the UK being diminished although the Prime Minister, Theresa May denies that any such plans are afoot. Alternative potential leaders of a post-Brexit Conservative Party may not however provide similar assurances. In any event it seems very unlikely (other than perhaps with the coming to power of  a Jeremy Corbyn led Labour Party) that any new statutory provisions placing greater obligations on employers to monitor and manage working hours will be introduced. 

Risks for UK employers

What avenues then might be open to UK employees struggling with excessive working hours and what risks might lie ahead for UK employers who fail to protect such workers? The answer may lie in old fashioned common law and the duty of care.  The Herald reported on 24 August that Scotland’s top law officer, the Lord Advocate  had failed to stop a £1.3 million legal claim proceeding  by a former senior procurator fiscal depute. The claim brought by Laura Malone alleges that her former boss failed to prevent her suffering stress caused by overwork. Ms. Malone claims she had to leave her job due to becoming ill with depression caused by her working conditions. She claims that the Scottish Crown Office ignored her complaints of excessive work and requests for help even when she began exhibiting “odd behaviour” at work.  The case has been permitted to proceed to a full hearing. The outcome of the proceedings will become known in due course unless settled but the matters highlights that, even in the absence of legislative protections, UK employees whose health is damaged by a requirement to work excessive hours may still find significant remedies against employers who do not proactively deal with these risks.

Eric Gilligan, Partner

If you have any queries about any of the issues raised above please do not hesitate to contact a member of the Stronachs Employment Team.

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