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The emergence of Smartphones has created the situation where employees can work anywhere, anytime. But are emails, texts and apps reducing productivity rather than increasing it?

France has now introduced legislation to restrain employers from requiring employees to access emails in out of work hours. Whatever one’s views about the French work ethic the fact remains that productivity in France is 30% higher than in the UK.(ONS figures).

There is a view that an always-on, 24/7 culture, has adverse effects in terms of work-related stress, poor decision-making and ineffective time. Furthermore recent research suggests that shorter hours, particularly for the over-40s produces better performance. Perhaps there is something in the “French model”.

Other evidence points to happiness at work increasing productivity by 12%. That does not necessarily mean reduced hours or different work-life balance . But it may point as to how employers should address the use of email outside work.

So what might be done?

HR professionals love the word “consultation”, but here, as in other aspects of the employer-employee relationship, good results can emerge.

Many employees, and certainly I surmise business owners, thrive on being in touch with work on a continual basis, as those emails sent to us at 11pm or 6am seem to testify. But are such emails sent due to over-anxiety, some desire to impress, or out of enthusiasm? It is important to know.

Where teamwork is involved then consultation might be on a collective basis, mindful that there may be a need to accommodate individual employees whose particular circumstances differ. In other cases individual consultation may be more appropriate, being aware again of the employee who may agree because they feel they have no choice.

The reason for advocating choice is that we know that employees who feel they have some control over their work and home life are less likely to be stressed and therefore more much likely to be productive.

The legal background

On call time where the employee is not at work is not considered to be working time. However, once an employee starts work (reading an email, for example) then this counts as working time.

With few exceptions, employees are limited to a maximum of 48 hours a week averaged over a period of 17 weeks, unless they sign an opt-out.

Employees are also entitled to the National Minimum Wage for those hours that they work.

If answering emails out of work is likely to bring an employee close to either of these limits then records of hours and pay (which are required to be kept in any case) will need to be monitored closely.

Other considerations

Otherwise than the above restrictions employers and employees are free to require employees to work to whatever arrangements may be agreed with them in their contract, adopted by custom and practice, or arising from consultation. The test of reasonableness will not necessarily apply.

However considerations of mental health, employee retention and, as we considered earlier, creating improved productivity will continue to be relevant.