A worker’s 24/7 nightmare …

15th September 2015

...online and connected 24 hours a day, 7 days a week

Amanda Okill, an Associate and employment law expert at law firm Furley Page, assesses what it means for the modern day worker to be ‘available’ 24 hours a day… and warns of the potential legal pitfalls for unwary employers.

In the late 1960s it was predicted that technology would allow us to work 20 hours a week, with the surplus spent on leisure activities. Sadly this has not proved to be the case.

Technology has instead resulted in a different pattern of behaviour, with today’s smartphones and tablets creating an era of instantaneous and continuous communication. We are all ‘available’ 24/7…

Peter Fleming, in a recent article for the BBC News, pointed to studies which reveal that 80% of employers consider it ‘perfectly normal’ to contact their staff outside working hours. In examining the phenomenon of ‘presenteeism’ or non-stop working, he said ‘behaviour that our grandparents would have deemed insane is now rather pedestrian.’

In 2015 the Chartered Institute of Personnel and Development (CIPD) surveyed over 1,000 employees and found that more than half say that they will take calls or respond to emails or messages outside working hours. Another tenth identified themselves as passive recipients who keep in touch with work-related communications but don’t reply outside working hours.

Those who said that they were contactable outside normal working hours were asked why and while 38% chose to do it, worryingly more than one in 10 (11%) said they felt pressure to be just as contactable as their boss or fellow team members are.

People are waking up to the damages caused by our present-day working culture – last year Germany’s labour minister, Ursula von der Leyen, sought to tackle it head on in her department by laying down strict limitations on the use of work-related mobile phones and emails during time off. Managers can only contact employees who are off duty in exceptional cases.

There are also a number of studies which examine the damage of a long hours working culture on a person’s health, family life, engagement and wellbeing. So what are the legal implications for an employer and what can be done to counter the risks?

Potential breach of the Working Time Regulations

The Working Time Regulations 1998 (WTR) implement the European Working Time Directive 2003/88, both of which set minimum periods of hourly, daily and weekly rest, including annual leave entitlement. Article 1 of Directive 2003/88 says: ‘This Directive lays down minimum safety and health requirements for the organisation of working time.’

For health reasons, UK workers are entitled to the following rest periods:

  • 11 hours of uninterrupted rest per day
  • 24 hours of uninterrupted rest per week
  •  A rest break of 20 minutes when working more than six hours a day.

Special rules apply to certain groups, such as the Armed Forces, police and those engaged in civil protection. However, in most industries, the standards as set out in the WTRs applies.

The WTRs also limit the average number of working hours, including overtime, to 48 hours per week in a reference period of 17 weeks. Employers should take all reasonable steps to protect health and safety and to ensure that this limit is complied with. An exception is where the worker has expressly opted out of the WTRs. Staff cannot and should not be forced to opt out.

Working time is defined in WTRs as any period during which the employee is working, carrying out his duties, and at the employer’s disposal. It includes time spent responding to calls and emails, at any location.

Personal Injury Claims

Long hours are often cited as partly to blame for injury to health in cases involving excessive workload. If an employee has regularly been working in excess of their contractual hours, particularly if they have complained about this fact, this may constitute one of the ‘impending signs of injury to health’. Where an employer is on notice of a potential injury to health, and fails to take adequate steps to protect their employee, they could be liable for damage to that person’s health.

Successful claims of psychiatric injury against companies are relatively rare. However, where an employee succeeds in establishing employer’s liability for a serious psychiatric injury, High Court damages can be significant.

For example, in the case of Barber v Somerset County Council [2004] UKHL 13, in which the damages awarded to a teacher for the employer’s failure to make inquiries about his health on his return from time off work for stress, and in not reducing his workload, amounted to £72,547.

A worker who is constantly on call and whose response time eats into their rest periods and time off is likely to be more susceptible to stress-related illness.

The CIPD’s Absence Management Survey 2014 showed that stress remains one of the most common causes of long-and short-term sickness. Two-fifths of firms reported an increase in stress-related absence over the previous year.

So what can be done?

A healthy workforce is one in which staff are engaged and positive, who do not feel obligated to respond to out-of-hours calls and emails, but only do so if they choose. To counter the risks there are steps an employer can take:

  • Target the prevailing culture of long hours and ‘presenteeism’. Professor Cary Cooper, in a speech to the British Psychological Society in May 2015, stressed the need to challenge the prevailing view that the ‘ideal worker is one who is always available’.
  • Set an example. If bosses are sick, they should not go to work.
  • Create a clear policy. The German Labour Minister’s code says “no one who is reachable through mobile access and a mobile phone is obliged to use these outside of individual working hours.”
  • Monitor working time. Remember that this will include time spent responding to calls and emails outside of traditional working hours.
  • Take any reports / complaints of overwork, long hours and stress seriously and establish support systems to assist the employee with their job if it is needed.
  • Consider whether devices which facilitate external contact are really necessary in particular jobs.
  • Line managers should be trained and aware of the risks of the prevailing culture and not impose any unnecessary expectations on their staff.

Amanda Okill is a member of Furley Page’s highly-regarded employment law team, which is ranked by independent law guides Chambers UK and The Legal 500. To discuss any issues raised in this article please contact Amanda on 01227 763939.

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