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The BBC reports today on a study by the University of the West of England which suggests that commuters so regularly use travel time for work emails that it should be classed as working time.

54% of commuters who were using wi-fi on the train journeys examined were sending work emails.

Modern technology and the ability to work remotely has blurred the boundaries as to what constitutes being at work.

There are a host of legal issues which could arise from this.

By law workers cannot generally be required to work more than 48 hours per week unless they have signed a waiver of their rights in this regard. If time spent dealing with work emails is counted as working time this could lead to breaches of this legislation.

The National Minimum Wage is calculated by reference to hourly rates, and if this time is included it could mean workers are being underpaid if it has not been taken into account when working out their pay.

If workers are expected to deal with work emails whilst on holiday, this could call into question whether this can properly be treated as holiday (which is technically a health and safety requirement) so as to satisfy the rules around minimum periods of annual leave.

Someone who is never able to “switch off” might also in certain circumstances have grounds for a work-related stress claim if it led to burnout.

A requirement to be “on call” 24 hours a day to deal with work emails could also give rise to indirect discrimination claims from people who have family or caring responsibilities outside of work if such a practice has a detrimental effect on their ability to fulfill those responsibilities or otherwise damages a satisfactory work/life balance.

There are also potential confidentiality and data protection implications around the use of technology on the move. More than one lawyer has been fined by the Information Commissioner for losing portable electronic equipment containing sensitive confidential information and a mental health doctor got into serious disciplinary hot water when she was allegedly overheard loudly discussing confidential case details on the telephone one the train.

Quite apart from the legal aspects of the situation, employers will want to reflect upon the impact that having no “down time” will have on employees’ job satisfaction, energy levels and productivity. 

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