Working criminally too much?
A recent Supreme Court case (KKO:2021:52) emphasises an employer’s obligation to actively monitor the employees’ working hours as it can be considered (among others) a work safety offence.
Most common work safety offences involve physical accidents at work duties, poor working environment or tools, the threat of violence or bullying by colleagues, clients or even supervisors. Usually, employees’ ambition and motivation to work hard and stretch their working hours are considered positive and desirable abilities. But when an employee puts the expectations of the work beyond his or her own health by working too much, it can be considered a work safety offence, even when it has happened on the employee’s own initiative.
“It was irrelevant if the overtime work was completed by the employees’ own initiative or on the initiative of the employer.”
Working time regulation is set in the Working Time Act (872/2019). The Act regulates the compensation to which an employee is entitled if he or she has exceeded his or her regular working hours. Besides that, the Act is also part of the legal framework governing occupational safety. Long working days increase the risk of accidents, and a large workload can in itself strain the employee and expose the employee to illness and accidents. According to the effectual Working Time Act, the working time of an employee, including overtime, may not exceed an average of 48 hours per week over a period of four months. If an employer or its representative intentionally or through negligence breaches the provisions on maximum working time, they may be sentenced to a fine for working time violation. If an employer neglects intentionally or through gross negligence the maximum working time despite an exhortation, order or prohibition issued by the work safety authorities, the punishment is up to imprisonment of six months (working hours offence).
The Supreme Court evaluated recently if a breach of the Working Time Act could fulfill the essential elements of a work safety offence. According to the Criminal Code of Finland an employer, or a representative thereof, who intentionally or negligently violates work safety regulations, or causes a defect or fault that is contrary to work safety regulations or makes possible the continuation of a situation contrary to work safety regulations by neglecting to monitor compliance with them in work that he or she supervises, or by neglecting to provide for the financial,organisational or other prerequisites for work safety, shall be sentenced for a work safety offence to a fine or to imprisonment for at most one year. In the case KKO:2021:52 the employees, whose duties included driving different kinds of vehicles, had significantly exceeded the maximum working hours. Some of them had worked even four times the allowed maximum working hours.
The Supreme Court evaluated recently if a breach of the Working Time Act could fulfill the essential elements of a work safety offence. According to the Criminal Code of Finland an employer, or a representative thereof, who intentionally or negligently violates work safety regulations, or causes a defect or fault that is contrary to work safety regulations or makes possible the continuation of a situation contrary to work safety regulations by neglecting to monitor compliance with them in work that he or she supervises, or by neglecting to provide for the financial,organisational or other prerequisites for work safety, shall be sentenced for a work safety offence to a fine or to imprisonment for at most one year. In the case KKO:2021:52 the employees, whose duties included driving different kinds of vehicles, had significantly exceeded the maximum working hours. Some of them had worked even four times the allowed maximum working hours.
Working overtime reduce the time spent exercising and increase the risk of cardiovascular disease and diabetes. In addition, long working days increase the risk of accidents at work. Long working weeks of more than 50 hours increase the risk of cerebral infarction and coronary heart disease. The Supreme Court found that it was irrelevant if the overtime work was completed by the employees’ own initiative or on the initiative of the employer. The Supreme Court emphasised that an employer may be guilty of a work safety offence either by violating the regulations by his or her active measures or by failing to comply with the obligations laid down in the occupational safety regulations.
Furthermore, the liability to penalty does not require that the employee’s safety is actually endangered, but the punishment of the act is directly based on the violation of work safety regulations. Regarding the work safety offence, the Supreme Court found that excessive overtime work is dangerous to health and that the representatives of the employer committed a work safety offence by failing to intervene in excessive overtime work of the employees.
CHECK LIST
- monitor employees’ working hours
- allow overtime work only temporarily
- agree in writing
- do not exceed maximum working hours
- take into account the physical and mental work-load of the employees
