Posted by Juliette Sanderson Neil, Solicitor
How to manage employees at risk of burnout
It is a fact that we are now living in an age of increased connectivity as a result of technological advances. Between the multiple Covid-19 lockdowns and the inability to travel abroad for holidays, many employers are concerned about the knock-on effect on the mental and physical health of their employees and consequently the negative impact on business performance and productivity.
Legislation already exists to set limits on maximum working time and ensure minimum rest periods. But are employers also protecting their employees from the negative impact of the age of digital communications? Are their employees disconnecting for adequate amounts of time or are they forever receiving a stream of work emails on their mobile phones?
The Covid-19 pandemic has led to enforced remote working and in many cases, the line between work and home life has become somewhat blurred. The Office for National Statistics has found that 35.9% of the UK’s employed population did at least some of their work from home last year. This group, while saving time on commuting worked an average of six hours’ unpaid overtime each week.
Consequently, there have been renewed calls for a legal ‘right to disconnect’ from work in the UK. A significant number of countries across the globe are in the process of adopting, or have already introduced, legal rights to disconnect.
What is the right to disconnect?
The right to disconnect means employers are legally required to agree rules with staff about when they can and cannot be contacted for work purposes.
How would the right to disconnect be implemented?
Ireland is the latest EU country to take action. It introduced a new code of practice in April 2021.
The three key rights enshrined in the Code are:
- the right of an employee to not have to routinely perform work outside their normal working hours
- the right not to be penalised for refusing to attend to work matters outside of normal working hours
- the duty to respect another person’s right to disconnect (for example, by not routinely emailing or calling outside normal working hours).
France was the first EU nation to legislate on the right to disconnect in 2017 with an amendment of the French Labour Code. Companies with more than 50 employees are required to negotiate with employees to implement policies to control use of digital tools, including a right to disconnect.
A blanket ban or just a requirement to negotiate?
Critics of the right to disconnect concept have argued that a blanket ban would be difficult to police and would also be difficult to apply universally across different sectors. Having a blanket ban on out-of-hours correspondence may prove detrimental to businesses as it overlooks the benefits of such correspondence.
In the UK, the Prospect union has called for there to be a legal requirement for companies to negotiate with staff and agree rules on when individuals cannot be contacted for work.
In the absence of any code and legislation, a discernible willingness by businesses to engage on the right to disconnect may well be helpful to businesses in defending employee claims for mental health or other injury through alleged overwork or stress.
On 21 January, the European Parliament approved a resolution asking the Commission to introduce a Directive to establish minimum requirements for remote work across the EU and the right to disconnect. Although the UK will not now be bound by any EU Directive that is adopted, it is likely to respond to calls that are also growing here for the introduction of a legal right to disconnect.
With many companies making a move towards hybrid home/office working models in the near future and the increasing focus on employee health and wellbeing, the right to disconnect may soon become a fundamental part of working arrangements for employees across the EU and globally. Some countries, like Germany, have not yet passed legislation, yet the right to disconnect is already a well-recognised concept with many larger companies having voluntarily introduced policies to govern working time and enable employees to take uninterrupted rest. In the USA, many companies have taken matters into their own hands and have addressed the reduced uptake of annual leave and constant connectivity with additional company-wide annual leave for 2021, ensuring that all staff are taking time off on specific days.
Our team of experienced employment lawyers are able to assist concerned employers by drafting suitable policies to govern employee working time and enable employees to take uninterrupted rest:
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