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Employment Law: Should emailing whilst commuting count as work?

A study by the University of the West of England argues that the working day is extended during commutes by advancements in technology. The study looked at 5,000 passengers commuting into London. Many employees were using their commuting time to send work emails from their phones and tablets.

Some passengers felt sending work emails was helpful as a ‘transition’ between home and work. One felt it was making use of ‘dead time’. The study suggests that the extra work is added onto the day rather than replacing office hours. Researchers are calling for this time to be treated as part of working hours.

Working on a commute can be part of ‘flexible working’, which can increase productivity and create goodwill. One of the commuters in the study left the office early to make up for working on the way into work. Banning staff from sending work emails whilst travelling might be counterproductive and increase the time people spend in the office. And not everyone is working. No doubt some of those staring at their phones are chatting to friends on WhatsApp or watching the latest episode of The Apprentice.

There may still be some risk. The Working Time Regulations 1998 impose a maximum 48 hour working week, although employees can opt out. If working during a commute is ‘working time’, it could result in workers reaching the maximum weekly hours without an employer even knowing. It is worth keeping an eye on your staff and any work done during commutes. An employee who is doing extra work might also be struggling or have too high a workload, which an employer needs to know about too.