You’ve got (e)mail! … or will I ever get out of this place?!!!

Photo by Kon Karampelas on Unsplash

Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.

The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.

There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).

Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:

https://www.bbc.co.uk/news/uk-politics-49795179

https://ec.europa.eu/eurostat/databrowser/view/tps00071/default/table?lang=en

https://www.oecd-ilibrary.org/economics/international-productivity-gaps_5b43c728-en;jsessionid=c_2XYmRNoOJLRgHdT0TJPQqs.ip-10-240-5-115

UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.

Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.

In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.

The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?

This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).

Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.

There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.

Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.

Is there a better way of doing things? Yes, is the short answer.

In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.

In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.

Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:

https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/

The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.

One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).

A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110220/data/9327866/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 11 February 2020

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019