Emails when commuting should count as work time
30 August 2018
BBC News has published a story about research from the University of the West of England about wider access to wi-fi on trains and the spread of mobile phones extending the working day. The study examined 5,000 rail passengers and the impact of free wi-fi being upgraded on the London to Birmingham and London to Aylesbury routes..
Findings revealed that 54% of commuters using the train's wi-fi were sending work emails. Those on the way to work were catching up with emails sent ahead of the coming day - while those on the return journey were finishing off work not completed during regular working hours. Comments from commuters included:
"I am a busy mum and I rely on that time, it's really important to my sanity that I can get work done on the train.”
"It's dead time in a way, so what it allows me to do is finish stuff and not work in the evenings.”
The report said that the findings raise questions about the work-life balance and whether it is healthy to stretch out the working day with people routinely answering emails beyond office hours. If the journey has become part of work, should it also be recognised as part of working hours?
‘Unmeasured work’ is something that was under discussion in May when the CIPP and members met with the Low Pay Commission to discuss the issues that exist around the minimum wage. This is potentially a really big issue as many contracts do not include the obligation to track hours, particularly for salaried employees. How would an employer prove that they have complied with minimum wage regulation over a year in this type of situation?
We look forward with interest to the publication of the LPC’s annual review, which this year looked at more than just the levels of the National Minimum and Living Wage rates. Also included is both the potential impact of a premium/higher minimum wage for those hours that are not 'guaranteed', as well as alternative means for tackling the issue of ‘one-sided flexibility’, where some workers experience uncertain and unpredictable work schedules. Evidence will also be incorporated from the visits to individual organisations around the country and the various roundtable meetings such as the aforementioned with the CIPP.
‘Unmeasured work’ needs to be fully addressed and comprehensive guidance provided for employers. We recently heard about a case in Ireland where a business executive was awarded €7,500 after she argued she was required to deal with out-of-hours work emails, some of which were after midnight. This led to the individual working in excess of the maximum 48 hours a week set out in Ireland’s Organisation of Working Time Act 1997.
There may already be cases going through the UK courts, and if not, it will only be a matter of time. Employers may want to look at their policies/procedures/contracts of employment to see where they can mitigate the risk of claims from employees who regularly work extra hours using their mobile devices before and after their typical working day.