Working on the train – when smart working may not be so smart

3 September, 2018

A study by the University of the West of England reported last week found that 54% of rail passengers on commuter routes into London used the trains’ wi-fi to send work emails, whether on their way to work or on their journey home.  This further example of the blurring of boundaries between work and home-life, aided by the prevalence of smartphones and improvements in mobile internet access, raises a range of implications and questions for employers.

Overtime and appraisal

Should employers recognise work which the employee carries out on their commute in the form of additional pay or as part of its assessment of the employee’s commitment and contribution?  If so, how does it monitor and evaluate this additional work? Does this additional work have the same visibility as with the employee who simply stays late in the office?

Working time

Time spent commuting is not usually viewed as working time for the purposes of the Working Time Regulations (WTR), since the employer has no control over where their employee lives, how they travel to work or how long their commute takes.  The employee is not considered to be at the employer’s disposal until they arrive at their workplace.  If the employee chooses to use their journey for work activities such as emails or telephone calls, this is broadly viewed as voluntary overtime and does not count as ‘working time’ under the WTR.

There are however predictions of test-cases which would argue that requirements or expectations on employees to deal with work emails outside office hours infringe their rights under the WTR regarding working time and uninterrupted rest-breaks.  The crux of these cases is likely to be the degree of obligation.

In July a business executive in Ireland was awarded €7,500 compensation for breaches of working time legislation, because the employer’s requirement on her to deal with out-of-hours work emails resulted in her working hours exceeding the maximum 48 hours a week.

Culture and well-being

Organisations should consider whether their approaches and attitudes to accessibility and out-of-hours working might foster an environment in which employees feel unable to switch off and so impact their well-being and engagement.  These issues should in turn be reflected in their policies such as bring-your-own-device (BYOD) policies.

According to research last year by the CIPD, views of employees are divided whether remote access to work empowers them by supporting flexible working and enhancing productivity, or has overall negative effects such as disrupting leisure time, increasing anxiety and impacting on quality of sleep.  A third of UK employees felt that having remote access meant that they could not switch off in their personal time, and nearly a fifth felt as though they were under surveillance as a result.

In France a “right to disconnect” law was introduced in January 2017, which requires companies with over 50 employees to draw up a good conduct charter enabling employees to switch off, in all senses, when off-duty or on holiday leave.  The objective of this legislation is to ensure compliance with rest-times and holidays and due respect for the employee’s family and personal life.  Some companies in this country and elsewhere in Europe are implementing similar protocols.

Confidentiality and data security

Any work activity which the employee carries out while using public transport could have serious implications for the employer’s data security and GDPR compliance or could allow the inadvertent disclosure of confidential information.  Even if the employee’s device has appropriate security installed, there are obvious risks where a fellow passenger can read whatever the employee is reading or typing.

Please contact our Employment team if you require any guidance or support on these issues, and for updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw