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The answer, of course, is yes. One can always ask! The bigger question is whether the employee can refuse to handle emails out of hours. Get it wrong and you could face a claim in court, as happened in Ireland. The regulations in the UK are equivalent.

The right to refuse:

1. The employment contract

Unless you have covered the requirement in the contract of employment there will be uncertainty.
There is an implied term in the contract of employment that employer and employee will co-operate with each other. There is also a “psychological contract” – the implication that the employee will do more than simply turn up for work. To some extent, both these concepts undermine the right of an employee to refuse a reasonable instruction.

What constitutes reasonable is, inevitably, open to interpretation. That is the nature of the job, the timing of the intrusion, and the extent of the intrusion, that out of hours emails represent.

2. Working Time Regulations

Arguably the most pertinent right here is to an uninterrupted rest break of 11 hours between any periods of work. Sending an email at 11pm and then dealing with the response at 8am does not satisfy that regulation.

There is also a limit of 48 hours on a working week, although an employee can opt out of that limit.

3. National Minimum Wage Act

If an employee is working at your request, then that constitutes working time. If an employee’s earnings are already at or near the minimum wage then extra time answering out of hours emails could lead to a breach of the Act.

What you can do:

1. Put it in the contract of employment.

If you are expecting the employee to be on-call then it would be wise to put that, and the relevant hours, into the contract of employment. For existing contracts please see item 3 below.

2. Have an open discussion

Some employees are happy to give 110% and provided that does not compromise the working time regulations or national minimum wage you are free to ask and they are free to accept. Note however that asking and instructing can seem the same to an employee, see below.

3. Introduce it as a requirement

The business world is changing and employers have to respond. If there is a sound business reason for requiring out-of-hours responses then you are on strong ground in insisting on it. You would be wise to take some advice first, even though in most cases you can prevail if necessary.

4. Monitor activity

Monitoring employees’ activity is the subject of a separate blog. However I submit that it comes within the area of reasonableness to expect employees to monitor and report the use of their time. After all you may want to be sure that excessively diligent employees are not breaching regulations without your knowledge. There are several apps which assist with this; one is Toggl that is available on IoS and Android.

5. Finally, take care what you ask.

When the boss asks, it is often more an instruction than a request. If it is a genuine request then make that clear.
Overloaded, over worked employees who never switch off are not necessarily an asset to your business. They can be the cause of accidents, poor decision making and low overall performance. Less can be more.

Malcolm Martin FCIPD

Author Human Resource Practice