Given the health and safety risks which might arise in the case of any breach, the Organisation of Working Time Act 1997 (the "Working Time Act") creates strict liability obligations for employers. The fact that an employer is unaware or negligent as to whether or not the employee is exceeding the maximum working hours or not taking sufficient rest breaks or the fact that the employee is responsible for having exceeded their maximum weekly working hours is irrelevant.

Employers must put mechanisms in place for monitoring the number of hours worked by employees and be proactive in monitoring employee compliance with the Working Time Act. The decision in Kepak Convenience Foods Unlimited Company –v- Grainne O'Hara WTC/18/18 demonstrates that contractual provisions in relation to working time should reflect the specific requirements of the role and must be operated and monitored to ensure compliance.

The employee in this case was a Business Development Executive and under her contract of employment she was required to work 40 hours per week and to record her activities and engagement with customers. Her case was that in practice her duties required her to work in excess of the 48 hour statutory maximum set out in Section 15 of the Working Time Act. As proof of her claim, she submitted emails exchange by her up until midnight and on a few occasions after midnight. Despite often replying to late night emails from the employee, the employer's defence was that they did not require her to work such hours and that in fact they had provided her with training on a more efficient way to complete her work. The WRC found that although the employer did not require the employee to work such hours, the fact is that she did and the employer was aware of her working hours and, as such, the employer was in breach of the Working Time Act. On appeal by the employer, the Labour Court increased the level of compensation awarded to the employee and made the following findings:

1. The employer had no record of the employee's working hours;

2. While the employer said the employee was not required to work that additional hours, they failed to provide any evidence about whether or not she actually worked those hours;

3. The employee's evidence of emails sent late at night on a regular basis was not contradicted by the employer;

4. The Working Time Act provides that an employer "shall not permit" an employee to work beyond the maximum working week over a relevant period. In this case, the employer was aware that the employee was working beyond her regular working hours and took no steps to prevent this from happening

It is clear from this case that employers need to put appropriate measures in place to monitor the hours worked by their employees, including when they are working remotely and outside the workplace at evenings and weekends. In practice, the maximum working week can be averaged over a reference period of four months, or longer in certain circumstances. Therefore, it is possible for employees to work more than 48 hours on a given week provided employers take appropriate steps to ensure they take adequate rest breaks and that there is a sufficient reduction in hours in other weeks over the reference period to ensure that the maximum working week is not exceeded on average.

Often employers include a clause in their contracts of employment that states that the employee is not subject to terms of the Working Time Act as they determine their own hours. A number of key cases on this issue make it clear that such clauses should only ever be used for very senior employees or employees in very particular roles who truly determine their own hours of work.

Walkers provides tailored advice to employers seeking to update their working time policies, contractual provisions and practices. We also provide advice on email and internet use, flexible working arrangements, after hours working and the right to disconnect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.