Before the pandemic, employees in the UK worked the equivalent of £35 billion in unpaid overtime. These figures have risen during the pandemic, with one in 10 people now claiming that they work at least 20 hours a week over and above their core hours.

The shift to a more flexible remote-working culture has had its benefits. Many people are exercising instead of commuting and spending more time with family. However, there have also been negative effects, such as isolation and burnout. Although the long hours culture is not a new problem, remote working has further blurred the lines between work and home, making it more difficult than ever for some employees to switch off after work hours.

Potential pitfalls for employers

There are a number of potential claims that can arise from employees being asked to work too hard, particularly in this new climate.

Constructive dismissal

Constructive dismissal is where an employee is forced to resign because the employer’s conduct has breached a fundamental term of the employment contract. The fundamental term most often relied on is the implied term of trust and confidence, but employers also owe a duty of care towards their staff, which includes taking reasonable steps to prevent foreseeable stress-related illnesses.

Discrimination

Employers should also consider potential discrimination claims which might arise out of requiring employees to work longer hours. The courts have held that, even where there has been no obligation for employees to work long hours, an assumption by the employer that they will work longer hours could put those with certain characteristics protected by discrimination law at a disadvantage and lead to indirect discrimination claims on the basis of age, pregnancy, religion or belief, disability or sex. Older people, pregnant women and those who are the primary carers for children or other relatives are likely to find it harder to work longer hours, and thus potentially suffer a detriment if long hours become part and parcel of the job. There is similarly a risk of religious discrimination if, for example, employees are asked to work on days which are considered holy in their religion.

Personal injury

If work-related stress results in an employee being diagnosed with a recognisable psychiatric injury, such as depression or post-traumatic stress disorder (PTSD), they may have a claim for personal injury. Stress itself is not considered an injury for these purposes, but long-term exposure to stress can and often does lead to diagnoses of psychiatric disorders. The illness must be a reasonably foreseeable consequence of the employer’s culpable conduct. Employers are usually entitled to assume that employees can withstand the normal pressures of a job.

Practical steps for employers

Employers may wish to consider some of the following practices to mitigate these risks:

  • Training - mental health training for all staff would help them recognise when they might be at risk of illnesses arising from long hours. Larger organisations may also want to consider having a mental health first aider on site to recognise common problems and guide anyone who is struggling.
  • Flexibility – recognising that each employee has different needs and some cannot work long hours for the reasons cited above. Employers should be open to making needs-based specific arrangements.
  • Communication – employers should encourage staff to come forward if they are feeling unwell or overwhelmed, and take these concerns seriously by properly investigating when employees complain or are showing signs of stress. Supervisors might want to arrange regular well-being meetings to stay on top of this.
  • Annual Leave – actively encourage employees to take annual leave and promoting a culture where taking breaks is accepted.

If you would like advice on your rights and obligations as an employer or an employee, please don’t hesitate to get in touch with our employment team.