On-line and connected 24 hours a day?

Posted by Amanda Okill

Senior Associate

A modern day worker’s nightmare

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 facilitated a different pattern of behaviour, synonymous with presenteeism - today’s smartphones and tablets facilitate instantaneous and continuous communication.

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 employees outside working hours. In examining the phenomenon of ‘presenteeism’ and non-stop working, he states ‘behaviour that our grandparents would have deemed insane is now rather pedestrian.’

A CIPD survey carried out in 2015, collecting data from just over 1000 employees found that over half say that they will take calls or respond to emails or messages outside working hours with another tenth identifying themselves as passive recipients who keep in touch with work related communications but don’t reply outside working hours.  Those who confirmed that they were contactable outside normal working hours were asked what the main reason for this is. While 38% chose to, worryingly 11% replied that they felt pressure to be contactable as their boss/team members are.

The damages caused by our present day working culture have not been ignored by all and in 2014 Germany’s labour minister, Ursula von der Leyen sought to tackle it head on in her own 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 a number of studies which examine the damage of a long hours working culture on a person’s health, family life, engagement and wellbeing. Here we look at some of the legal implications for an employer and what can be done to counter the risks:

1. 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 sets out its purpose and scope confirming as follows:  ‘This Directive lays down minimum safety and health requirements for the organisation of working time.’

It is for reasons pertaining to health that workers in the UK 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 of worker, such as the armed services, police and those engaged in civil protection. However, in most industries, the standards as set out in the WTRs will apply.

In addition, the WTRs 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, in keeping with the need to protect health and safety, to ensure that this limit is complied with.

A permissible exception is where the worker has expressly opted out of the WTRs. Workers cannot and should not be forced to opt out.

Working time is defined in WTRs as any period during which the worker is:

  • working;
  • carrying out his duties; and
  • at the employer's disposal.

It would include time spent responding to calls and emails, at any location.

2.  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 heath." 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 employee’s health.

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

Illustrative is 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 £72,547.00.

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 Chartered Institute of Personnel and Development (CIPD)'s Absence Management Survey 2014 indicated that stress remains one of the most common causes of both long and short-term sickness. Two-fifths of organisations reported an increase in stress-related absence over the previous year.

So what can be done?

The damage is evident, apart from the legal risks. A healthy workforce is one in which employees 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 could take:

  • Target the prevailing culture of long hours and presenteeism. Professor Cary Cooper, in his keynote speech at the British Psychological Society in May 2015, emphasised the need to challenge the prevailing view that the ‘ideal worker is one who is always available.’
  • Set an example.  If leaders are sick, they should not present at work.
  • Look at a clear policy or code addressing the issue. The German Labour Minister’s code states “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 set in place support systems which will assist the employee with their job if it is needed.
  • Consider whether devices which facilitate external contact are really necessary in particular jobs.
  • In all cases, line managers should be trained and aware of the risks of the prevailing culture and not impose any unnecessary expectations on their staff.

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