Long hours culture - the legal implications for employers

By: Guest contributor

Date: 7 October 2013

Long-hours culture - the legal implications for employers/asleep during the work{{}}‘Working 60 hours a week is dangerous’ screamed the headline of a recent YouGov poll. This got me thinking about the dangers of the modern workplace, our apparent ‘long hours’ culture and the obligations on employers to manage these risks.

Death by Powerpoint?

The UK is a pretty safe place in which to work. There were about 130 workplace fatalities last year, which is 130 too many but, given we have a 30 million-strong workforce and the hours they spend at work, that’s actually a pretty low number.

At the other end of the scale, I’m reminded of the old Bill Bryson column highlighting how almost a half-million US workers report injuries each year from innocuous items such as pens, staplers and (I kid you not) ceilings. For employers, protecting employees from these risks probably involves little more than common sense and a certain existential acceptance that, from time to time, we’re all prone to injuring ourselves mildly when we’re not paying attention.

Some risks require careful attention, even though most ‘health and safety gone mad’ stories actually reflect a misunderstanding of health and safety law. Seriously, if your employees want to take their lives in their hands playing conkers at lunch without goggles and ‘hi-vis’ vests, the HSE won’t have much to say about it.  

But there are a plethora of health and safety rules that do apply to certain industries and a general overarching obligation to keep employees safe, of which every business should be aware. If you’re mostly employing office workers, you may only need a quick audit and a robust policy for staff. If you’re in the construction, waste or recycling sector, health and safety should be top of your agenda at every board meeting.

Sleep is for the weak, work is for the week’

More recently, we’ve seen talk of hidden workplace dangers, such as the one identified by that YouGov poll. Britain’s ‘long-hours culture’ is getting a lot of airtime.

The tragic death of an intern at a major investment bank recently brought this issue back to the fore, but we’ve been here before. In 2007 a junior lawyer at a major London firm died, with media reports linking this to a period of intense working. In both cases the cause of death was unknown, yet press speculation was quick to make the causal link to long hours in both industries.

Looking closer at that YouGov Poll, it actually said that most people responding to the survey thought that working 60 hours a week was ‘dangerous or unsustainably difficult’. Remember this was not a scientific study. According to the OECD, we’re the third hardest-workers in Europe, based on average annual hours (1,647). Greece manages 2,017 hours, Germany 1,408 and the Netherlands a comfortable 1,435 (hardly worth getting out of bed). Overseas, our US cousins manage 1,797 and South Koreans a staggering 2,307 hours.

Is this dangerous – or even unlawful?

Actually, there is emerging evidence that stress at work, coupled with long hours, is not good for us. It’s also interesting to note that the paradigm ‘normal’ working day of eight hours stems not from hard scientific evidence, but from Henry Ford’s decision to impose that as the standard shift length in 1914. Reducing the working day from more than 12 hours surprisingly increased productivity. You’ve probably experienced this effect the day before you go on holiday, when it’s suddenly easier to prioritise, ignore distractions and just get things done.

The EU’s Working Time Directive limited working hours to 48 per week. Intriguingly, when the legislation was introduced, it was not packaged as an employment matter (which required unanimous support from member states). Instead, it was labelled as a health and safety measure (requiring only majority consent), suggesting there is a belief that long hours are not healthy.

This labelling had a secondary effect – the UK was able to include an opt-out in the domestic legislation (the Working Time Regulations or ‘WTR’). As such, if workers signed an explicit disclaimer, they were able to work more than 48 hours. Although frowned upon by experts, many employers adopted the practice of putting this disclaimer into contracts, meaning employees had little choice but to sign the opt-outs if they wanted employment.  

Employment Tribunal claims

Technically, employees can bring a claim in the Employment Tribunal if they suffer a detriment as a result of a breach of the WTR. In practice, these claims are rare and many employers impose the opt-out as a matter of practice with little or no objection. Employees can revoke their consent to the opt-out provided they give up to three months notice and dismissing them for doing so would most likely be unfair. Rightly or wrongly, I can’t remember seeing an employee ever try this in practice. Even when claims have been brought, Tribunals have a habit of awarding negligible compensation, as it is often difficult to show direct financial loss as a result of working a bit late.

So employers can probably get away with continuing to use the opt-out and most employees (particularly in the UK) seem almost embarrassingly compliant when it comes to working unpaid overtime or skipping lunch. Still, many companies report wildly successful effects on employee motivation and productivity along with reductions in employee turnover as a result of adopting more ‘flexible’ working patterns.

Whatever the science, employee perception clearly favours flexible working, shorter hours and better balance. The benefits are there for employers that grasp the nettle and start to explore new ways of describing a ‘normal’ workday.

Blog supplied by Richard Turner, head of employment law at Brilliant Law