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Smartphones and Working Time Regulations 1998

Napthens - August 22nd 2018

Many organisations provide their staff with smartphones in order for their staff to be reachable outside of working hours by their colleagues and customers alike. However, could the use of smartphones potentially constitute a breach of the Working Time Regulations?

Whilst the question hasn’t yet been widely considered in the UK, it has in other European countries with both Ireland and France recently hearing cases surrounding the use of smartphones outside of standard working hours.

Earlier this month the Irish Labour Court awarded a business executive €7,500 after it was found she was required to deal with out-of-hours work emails, some of which were past midnight. As a result of the demands placed upon her, she frequently worked in excess of 48 hours per week in breach of the Irish Organisation of Working Time Act 1997.

Last month, Rentokil in France were ordered to pay €60,000 to a former director after the court found that he was on-call outside of working hours after he was listed as an emergency contact. Here the case was brought under the country’s new domestic ‘Right to Disconnect’ law, which is known as the El Khomri law.

What Should You Do?

Many employers provide their staff with mobile phones to ensure that they are contactable outside of normal working hours or when they are out of the office. Many employees also elect to occasionally be contactable outside of their normal working hours, especially during busy periods. Employers should ensure that care is taken to ensure that occasional doesn’t become constant to the extent that employees don’t feel that they can switch off. Whilst, occasional use of smartphones outside of typical working hours is unlikely to cause issues with staff, perceiving that there is a constant requirement to be contactable could.

In particular, employers need to pay particular attention to how long their staff are spending working on smartphones outside of their working hours as, if their staff are frequently working in excess of 48 hours a week, they could potentially fall foul of the Working Time Regulations.

Employers could request that their staff sign an opt-out agreement, which would minimise any potential risk of a claim being brought in relation to their working time.

However, following recent research which suggests that 63% of full-time workers believe that their smartphones are responsible for creating an imbalance between their work and personal lives, employers should also consider taking proactive steps to limit how often their staff are spending working on their smartphones outside of their normal working hours. Also in the same survey 56% of those polled admitted that they regularly receive work-related calls during holidays, weekends or evenings. Therefore, a simple step could be by only calling and emailing your staff at weekends and evenings where it is absolutely necessary. In addition, staff should be encouraged to ensure that they are taking sufficient breaks and are resting outside of their normal working time.