There have been a number of news stories making the headlines following a report by the University of the West of England that found that thousands of commuters in England use their train journey to and from work to catch up on work emails. This has resulted in a call for commuting time spent ‘working’ to be counted as part of the working day.
The report raises interesting questions on time spent out of work more generally checking emails. Should it be classed as working time and should employees get remunerated for it?
Based on current legislation, this time would generally not be considered working time unless it was defined as such in the employee’s contract of employment. This is because the employee is checking their emails voluntarily and at that time they are not at the employer’s disposal. The case may be different for an employee being asked to work by their employer.
If checking emails after work was classed as working time then it could result in the employee working over 48 hours a week which is prohibited under the Working Time Regulations 1998 (‘WTR’) unless the employee has opted out of the WTR. If an employee has not signed an opt-out agreement, then subject to the business needs, an employer may consider consulting employees to seek their opting out. An employer cannot force an employee to sign an opt-out agreement or victimise anyone for refusing to do so. It would be unlawful to dismiss someone for refusing to sign an opt-out or for opting back in. Even if a worker has agreed to opt out, they cannot be required to work excessively long hours if this creates a reasonably foreseeable risk to his health and safety or the health and safety of others.
If the law changed, employers would still need to ensure that their employees have adequate rest breaks but they cannot force them to do so. If an employee chooses to check their emails outside of work then they are choosing not to use their break. An employee may, however, argue that there is an expectation on them to check their emails outside of work.
Most people work so they can be paid. If checking their emails outside of work was classed as part of the working day it would need to be clear whether they are going to be remunerated for that. This should be dealt with in the contract by saying whether the employee is paid for overtime or that they get time off in lieu. For some employees they may receive no remuneration because their contract states that they will be required to work as and when it is required. Care should be taken by employers to ensure that it does not result in the employee being paid less than national minimum wage for their average hourly rate as an employee’s working hours may dramatically increase.
In the alternative, if checking emails outside of work is considered working time then it could result in employees being in the office less as they could argue they are working when they are checking emails at home.
Employment lawyers have found that increasingly, employers are embracing flexible working. Offering more flexibility allows employers to recruit and maintain more staff, says the head of employment at the CBI, Matthew Percival. Less people are working the standard 9-5 and there is a continued blur between home and work life which may be attributed to the development of technology. In addition, there is increased awareness of mental health by society. Employees may find it difficult to relax and switch off from work as they feel like there is an expectation to be checking emails at home.
In addition to the key things above, practically employers do need to consider how they record the amount of work done by their employees, whether they need to implement some form of monitoring system, as well as understanding just how much work is being done in terms of measuring productivity. There is also the added risk to data security when employees are accessing potentially confidential information when they are away from the office. This is even more important now GDPR is in force. It is a serious data protection breach if a work mobile device is left somewhere, especially if the right security software has not been installed on the device or alternatively the information is accessed in public places or public transport. New policies would also need to be considered and drafted. There may be some disgruntled employees who have spent many years checking emails outside of working hours and have never received any recognition for doing so.
Whilst some of this is speculative, these are important issues employers need to consider now, and even more so if the law changes and employees checking their emails after work becomes classed as working time. This change could come about from a legislative change or an employee bringing a claim relating to this area of law that results in a ruling on this specific area of law.
If you have any questions surrounding existing legislation on flexible working, whether from an employee or employer perspective, please contact our employment team on 01392 210700 or email firstname.lastname@example.org