The Right to Disconnect from Work

Posted on

Category: HR Alerts

In a bid to improve work-life balance, French companies with more than 50 employees are now required to guarantee workers the “right to disconnect” from technology when they leave the office at night. The law, which took effect recently, has vague enforcement provisions making it obligatory for qualifying firms to start negotiations with their workforces, about when to ignore their smartphones.

It is the French response on how to tackle the modern-day scourge of compulsive out-of-hours email checking. Overuse of digital devices has been blamed for everything from burnout to sleeplessness, as well as relationship problems, with many employees uncertain of when they can ‘power down’. Whilst the foreign press mocked this new law, it is defended by the French who are concerned that increasing use of technology has blurred the lines between work and personal life. A survey of French workers found, that more than a third of them use their devices to access email, or do some work every day. As reported in Le Monde, a recent study found than approximately 3.2 million French workers are at risk of “burning out,” defined as a combination of physical exhaustion and emotional anxiety. This law has few teeth and is about promoting a climate favourable to conversations with people working, about what their expectations are whilst maintaining a healthy workplace.

In the UK a survey of employers suggest that 21% expect staff to always be contactable out of working hours. Employers need to take into account demands from employees for both protection and flexibility.  We need to re-think what work-life balance really means. Some people want to work in the evening, but want to be able to switch off when they are picking up their kids and are cooking dinner. Some want to switch off on their daily commute, whilst others wish to get/keep ahead. What is clear is that the workplace is changing as rapidly as technology, with employees increasingly working remotely, or with colleagues/clients in other time zones.

Peter Stanway, our BackupHR™ legal expert comments:

Many of us fail to achieve work life balance. Now even this concept is being challenged by the idea of work-life integration, which recognises that younger generations are often happy to blend work with home life thanks to technology, providing it is accompanied by mutual give and take.

Whether people are working flexibly or not, it is important to manage those boundaries between work and home, and being able to say ‘actually I am not working now’. People have criticised the French law, stating that the consequences of responding to emails out-of-hours have been largely exaggerated, as the amount of work individuals have to catch up on once they return to work, results in building up more stress.

The fundamental questions to ask is; do after-hour email restrictions hurt or help well-being and productivity?

For many businesses banning workers from accessing their inboxes, or communicating on work issues out-of-hours is simply not realistic. However, employers can introduce procedures that encourage employees to take proper breaks, and, making it clear that when sending emails, people need to have a sensible and reasonable expectation as to whether people choose to respond to emails sent out-of-hours.

Even though legislation is unlikely to be introduced in the UK, employers should not ignore the issues that can arise from excessive use of digital devices and should:

  • Promote a healthy debate about what is acceptable use.
  • Encourage employees to adopt a healthy lifestyle and work-life balance.
  • Develop policies which are realistic and fair.
  • Train Managers in applying that policy sensitively and leading by example.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Most large businesses will be aware that the Modern Slavery Act 2015 requires them to prepare a statement disclosing the steps they have taken to ensure that there is no slavery or human trafficking in their businesses and supply chains. The Act states that the slavery and human trafficking statement must be approved by the organisation’s management body and signed by a director.

What is less well known is that the Act is meant to filter down to smaller organisations, who supply those large employers. There is however a misconception that the Act does not apply at all to SME’s when in fact it is only the statement that is not really relevant; otherwise there remains a real duty of care on all organisations to help eliminate human slavery and trafficking.

Peter Stanway, our BackupHR™ legal expert comments:

The statement provision applies to businesses in all sectors, including charities, with an annual turnover of £36 million. Failure to comply with the new rules may result in unwelcome publicity, difficulties with customers, clients, investors and funders and, potentially, enforcement action from the Government. Satisfying the requirements of the Act is not a one-off exercise.

Under the Act’s transitional provisions, the first organisations that will be required to publish a slavery and human trafficking statement are those whose financial year ends on or after 31 March 2016. The guidance states that an organisation should seek to publish its statement as soon as reasonably practicable, preferably within six months of the end of their financial year. For example, those organisations whose financial years ended on 31 December 2016, should aim to produce a statement by no later than 30 June 2017.

Organisations, whether incorporated in the UK or otherwise, will be required to publish their slavery and human trafficking statement on their website (if they have one) and include a link to the statement in a prominent place on their homepage. There is no requirement for organisations to include the statement in their annual report and accounts.

SMEs may well find themselves under pressure to demonstrate what they have done to meet the Act’s requirement from the supply chain with larger organisations as well as their own clients or customers. Investors and funders may also require compliance.

Actions:

  • Consider introducing a policy on human trafficking or hidden labour exploitation as it is sometimes called and how it fits into your Employee Handbook
  • Check your practices for ensuring compliance with the minimum wage and right to work in the UK legislation particularly employment agencies and other subcontractors
  • Review your procurement policies to ensure that you can request the information you need from your suppliers and subcontractors.
  • Consider what actions you will take if a supplier or subcontractor is found to have been involved in modern slavery.
  • Consider introducing modern slavery due diligence training for your relevant employees

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Employers that enforce sexist dress codes could be in line for stricter punishment and fines, if the Government follows recommendations set out in a new report produced jointly by the Women and Equalities Commission and the Petitions Commission of Parliament.

The report was triggered last year by receptionist Nicola Thorp, who set up a parliamentary petition to make it illegal for companies to force employees to wear high heels to work. The report recommends that the Government “takes urgent action to improve the effectiveness of the Equality Act” and that employment tribunals should be able to ask for more effective remedies, such as financial penalties, for those employers who breach the law. “While negative publicity will be a disincentive for many employers, this cannot and should not be relied on to prevent unlawful discrimination.”

It includes medical evidence from the College of Podiatry suggesting that women who have to wear high heels for extended periods of time could suffer long-term health problems. Many women who supplied evidence to the inquiry, said they would struggle to wear high heels due to conditions, such as multiple sclerosis or cerebral palsy. The report suggests that what constitutes a legitimate aim, should be more clearly defined under the legislation, with examples given including health and safety, projecting a smart and uniform image, and preventing appearance that may cause offence.

Peter Stanway, our BackupHR™ legal expert comments:

It is unlikely that legislation will be a high priority for the Government but we would suggest responsible employers avoid problems by updating dress code policies. It is difficult to argue with Frances O’Grady, general secretary of the TUC, who said: “Far too many employers are still stuck in the past when it comes to dress codes. It is unacceptable that in 2017 bosses are still forcing women to wear painful, inappropriate shoes and uniforms. Wearing high heels on a regular basis can cause foot, knee and back problems. High heels and make-up should be a choice, not a condition of the job.”

Employers can implement a dress code to ensure that employees are dressed in a manner that is appropriate for its particular business, provided this would not be deemed discriminatory. The imposition of outdated rigid dress codes can lead to discrimination claims, for sex, disability or religious reasons. Just because the law appears to be employer friendly, does not mean that employees will wear uniforms with pride, and they still have scope for legal redress. The primary reason for having a dress code is to maintain the organisation’s external image, albeit many employers insist for health and safety reasons. There is nothing to prevent an employer from including terms in contracts of employment or handbooks, outlining their dress code.

Employers’ rules on appearance must be a proportionate means of achieving a legitimate aim. In practice, this means that the more detailed the employer’s rules, the stronger their justification must be.
When reviewing your dress code consider:

  • Whether codes might be discriminatory and, if they might be, whether it can be objectively justified.
  • Dress codes must apply to both men and women equally, although they may have different requirements, e.g. a policy may state “business dress” for women, but may state that “men must wear a tie”.
  • Reasonable adjustments should also be made for disabled people, or religious minorities when dress codes are in place.

Acting reasonably and consistently is the best way to avoid disputes, and to be seen as being fair. Restrictions should relate to the job and be reasonable in nature. It is good practice when drafting or updating a dress code, to consider the reasoning behind it. Consulting, i.e. genuinely seeking the opinions of your employees is good management practice. Once agreed, it should be communicated to all employees.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Guardian recently reported that some staff at Le Gavroche in Mayfair say they have routinely worked 14-hour shifts for the equivalent of £5.50 an hour, well below the national minimum of £7.20. They claim they would work up to 68 hours a week, but earn only about £375 before tax. This means that they were being paid less than for working at MacDonald’s. If they were working for 68 hours per week, they should be paid at least £490.

A statement from Le Gavroche said: “All employees receive monthly wages which are fixed or static, whether they are front of house, or in the kitchen, and they are adjusted as a stepped increase over time to reflect length of service, level of responsibility and ability”.

Peter Stanway, our BackupHR™ legal expert comments:

This explanation does make sense, but it does not justify a lack of control to avoid this happening, with all the attendant bad publicity attached to owner TV chef Michel Roux, who apologised saying “I am embarrassed and I am sorry, but in no way was it done intentionally.”

It comes at a time when the Government, via the HM Revenue and Customs (HMRC), launched an awareness campaign based on bad excuses. It is encouraging people to check their wages and warning employers of fines.

An employer failed to pay the minimum wage to a worker because “she only makes the teas” – one of a string of bizarre excuses by employers. Another argued for not paying the legal minimum, saying that a member of staff “wasn’t a good worker”, while one said employees should “prove their worth”.

Among the cases investigated by HMRC was a boss who thought it was acceptable to pay foreign staff (in the UK) below the statutory rate.

Other excuses included:

  1. I’ve got an agreement with my workers that I won’t pay them the National Minimum Wage; they understand and even signed a contract to this effect.
  2. My workers like to think of themselves as being self-employed and the National Minimum Wage doesn’t apply to people who work for themselves.
  3. My workers are often just on standby when there are no customers in the shop; I only pay them for when they’re actually serving someone.
  4. The National Minimum Wage doesn’t apply to my business.

Business Minister Margot James said: “There are no excuses for underpaying staff what they are legally entitled to“.

All workers must be paid at least £7.20 an hour if they are aged 25 and over, in order to comply with the National Living Wage, this will rise to £7.50 in April. Businesses face a maximum fine of £20,000 per worker, for not paying the National Living or Minimum Wage. Failure to pay statutory minimums could also result in a company Director being banned for up to 15 years.

The National Minimum Wage means that:

  • Workers aged 21 to 24 should receive a legal minimum of £6.95 an hour.
  • 18 to 20 year olds should get at least £5.55 an hour.
  • Pay should be at least £4 an hour for the under-18s.
  • Apprentices should receive a minimum of £3.40 an hour.
  • You need to monitor working hours so that people on or just above the National Minimum or Living Wage rates do not fall below them, when they do extra hours.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In Edwards v Bramble Foods Ltd, an Employment Tribunal held that an employer fairly dismissed an employee who refused to do overtime, and whose protests at being asked to do so, threatened to disrupt the business and its ability to fulfil orders.

The company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas. Employees’ contracts of employment included a clause requiring them to work extra hours when the business requires. The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October. While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.

Management had a number of “informal chats” with her to explain that, by sharing the workload fairly, the company would be able to meet the demands of the Christmas period. Mrs Edwards continued to refuse, stating that she spent Saturday mornings with her husband, and also mocked her colleagues who had agreed to the overtime. Her behaviour escalated to such a level that she was sent home for three days to calm down, and ‘come back with a better attitude’.

The Employment Judge accepted that there were a number of minor flaws in the employer’s procedure, but they had no doubt that dismissal was within the range of reasonable responses saying:

“She [the claimant] had been given a contract of employment which said that she may be ‘required’ to work additional hours and she had no legitimate reason for refusing what she accepts was a reasonable management instruction. She just didn’t want to do the work it seems. The consequences for the respondent had the claimant not been dismissed might have been disastrous. …Dismissal was unarguably within the range of reasonable responses to a very difficult situation…”

 Peter Stanway, our BackupHR™ legal expert comments:

The Tribunal praised the employer in this case for the patience with which it dealt with the disaffected employee.

Key Lessons

  • Employers should make some attempts to resolve disputes in the workplace but that, should the employer take further steps to dismiss an employee, they have a fairly free rein to take steps which are beneficial for their business.
  • You need well drafted contractual clauses if you want to insist that your employees work overtime.
  • Despite some procedural errors, such as lack of warning, these were descried as ‘minor flaws’ by the Tribunal.  The allegation letter omitted one of the most important allegations against her; the effect her behaviour was having on her colleagues. Allegations should be set out fully and correctly, and should include everything which the dismissing Manager will be considering.
  • Despite these issues, the Tribunal found Mrs. Edwards must have been aware of the seriousness of the situation she found herself in.  It did not help her that the Tribunal found a number of her assertions to be untrue.
  • The Judge had sympathy for the company and the potentially disastrous effect of her actions. A differently sympathetic Judge and a more truthful claimant might have resulted in a different outcome.
  • If faced with a similar dilemma, you will have to tread with great care (and take professional advice).

This case proves that sometimes a robust line can be taken and upheld.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Small Alert Backuphr blue text post itIn Bandara v British Broadcasting Corporation the Employment Appeal Tribunal (EAT) upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss for further misconduct.

Mr Bandara worked as a Senior Producer in the BBC’s Sinhalese Service. In August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year. The first, for which he was charged with abusive behaviour, and refusing to follow a reasonable management request, concerned an occasion in March when he had shouted at a senior manager. He had apologised by e-mail the following day and no further action was taken. The second charge was for a breach of editorial guidelines. The disciplinary decision-maker considered that both incidents potentially constituted gross misconduct, and imposed a final written warning.

Not long after, he was subject to further disciplinary proceedings, which concerned allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. The disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded in August 2014 that he should be summarily dismissed.

The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.

Peter Stanway, our BackupHR™ legal expert comments:

An Employment Tribunal can consider whether the final warning was issued in good faith, whether there were grounds for issuing it (on the face of it) and/or whether it was manifestly inappropriate to issue it. It is not the role for the Tribunal to reopen every case in which the employee is dissatisfied with a previous sanction. It commented that “a sanction will only be manifestly inappropriate if there is something about its imposition that once pointed out shows that it plainly ought not to have been imposed.” In this case, the EAT noted that the ET found that the statement in the final written warning letter – that the conduct was capable of being gross misconduct – was misconceived and consequently that the final written warning was manifestly inappropriate.

This case highlights the need to carefully consider the rationale for issuing warnings in a disciplinary context and ensuring that this is accurately set out in the warning letter, given that the warnings may be referred to if there is an escalation of the disciplinary process.

Other lessons include:

  • The need to take disciplinary action in a timely fashion (this case was riddled with delays).
  • Ensure that the allegations to be considered are properly worded so the employee understands them and the implications.
  • Always consider the employee’s length of service and previous record, as well as the nature of the misconduct and the likelihood of repetition.
  • Ask for other reasons to mitigate the decision such as their health and the stresses they were facing.

Manifestly inappropriate is likely to be a high hurdle but should give pause for thought about what is reasonable and fair.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Small Alert Backuphr blue text post itIn Snell v Network Rail, a father has been awarded almost £30,000 in a sex discrimination case after his employer refused to pay him the same as his wife while on shared parental leave. This is the first case of its kind and unusually involves a couple who both worked for the same employer.

Mr Snell and his wife opted to share their leave. His application indicated that his wife would take 27 weeks’ leave and he would take 12 weeks after that. While Mrs Snell would receive full pay for her six months’ leave, Mr Snell was told he was only entitled to statutory parental pay of £139.58 for this period.

After a very lengthy grievance process, Mr Snell lodged an indirect sex discrimination claim with an employment tribunal. The tribunal heard that Network Rail has since introduced a new family friendly policy, in which both mothers and their partners are paid statutory – rather than enhanced – shared parental pay. Network Rail had initially contested indirect discrimination and argued that any disadvantage could be justified, based on the legitimate aim of recruiting and retaining women in a male-dominated workforce, but conceded this point so the tribunal only had to deal with remedy (compensation).

Network Rail had created a Family Friendly Policy in which it had combined rules about maternity, adoption, surrogacy and shared parental leave.

Peter Stanway, our BackupHR™ legal expert comments:

Although this first-instance tribunal decision is not binding, employers should review their policy in case they are following the same approach as this employer. This decision is only going to affect employers who have enhanced maternity schemes in place. Anyone considering removing a benefit like Network Rail ought to take professional advice before doing so.

The issue of whether or not it is discriminatory for employers to enhance maternity pay, but not shared parental pay, remains untested in the courts and tribunals. What is clear is that an employer cannot offer enhanced contractual shared parental pay to mothers only. If an employer chooses to offer enhanced contractual shared parental pay, it must offer it to both mothers/primary adopters, and fathers/ mothers’ or primary adopters’ partners. A direct discrimination claim is unlikely to succeed, as the father on SPL should be compared with the mother on SPL and not the mother on maternity leave. An indirect discrimination claim would depend on the circumstances, including the make-up of the workforce and the number and breakdown of employees taking SPL.

Actions

  • If you offer enhanced contractual maternity pay then you should review whether this is a wise policy. Government guidance is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay, but this may be challenged.
  • If changes to policies are required, appropriate consultation procedures must be followed, being careful not to avoid a breach of contract where agreement with employees to revisions is necessary.
  • While the take up of SPL is very low (only 1.5% of eligible parents according to research earlier this year), employers must be prepared to handle requests properly or face the consequences.
  • Deal with grievance issues sensitively and promptly, rather than wait for several months, as happened in this case and resulted in additional compensation.
  • Ensure you have well drafted policies which reflect the law and avoid shortcuts, which create ambiguity.

Network Rail’s response to the discrimination claim was to limit pay for women to statutory only, rather than enhancing the pay for men. This could be the least risky step to take, but is a shame if employers wish to promote a positive family-friendly environment.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Employers should welcome a ruling that the fairness of the appeal stage can always cure unfairness in the previous stages of a disciplinary process, provided the overall result is fair. The Employment Appeal Tribunal in Khan v Stripestar Ltd decided that a defective first stage disciplinary procedure can be corrected by a subsequent appeal, and that there are no limits to the defects which can be set right.

Stripestar Ltd ran a business selling and repairing cars. Mr Khan was responsible for running the repairs workshop including the allocation of work. Mr Khan purchased a car from a customer and used the workshop to carry out repairs. His managers became aware of this and made enquiries. At a disciplinary hearing he was dismissed on the grounds that he had made an unauthorised purchase of a customer’s car, used the customer’s name on a job card to carry out the repairs and removed the car from the premises without paying for the repairs. For the appeal the senior manager scrupulously interviewed relevant staff, considered the business’s disciplinary policy and the worker’s behaviour, and whether it amounted to gross misconduct – and made his decision impartially and fairly. He concluded that Mr Khan’s actions amounted to gross misconduct and therefore the appeal was unsuccessful.

Mr Khan brought a claim for unfair dismissal. The original disciplinary hearing was found to be procedurally and substantively unfair – it lasted no longer than six minutes! He was not given any opportunity to explain himself. The internal appeal, however included an investigation which included interviewing technicians in the workshop and the two managers initially involved. This appeal was found to have been procedurally fair.

The EAT found that:

“there are no limitations on the nature and extent of the deficiencies in the first stage of the process that can be cured by a thorough and effective appeal. Whereas here, an employee is summarily dismissed without proper investigation or inquiry, that dismissal will be unfair unless it can be shown that the subsequent procedure was sufficiently robust as to provide the overall fairness that the law requires.”

Peter Stanway, our BackupHR™ legal expert comments:

The process was still capable of being fair overall where the subsequent appeal process was thorough and reasonably conducted, against a background of sufficient evidence of gross misconduct. So, where there may be concerns about the robustness and fairness of an initial disciplinary process, the appeal gives an opportunity to correct matters. However, this should be seen as a safety net just in case things go wrong; the aim should always be to do things correctly at every stage, rather than rely on the appeal process correcting any failures.

Action points

  • However certain you are that an employee is guilty of gross misconduct; you should stick to a fair disciplinary process. That would probably have saved the employer a large amount of time, stress and money.
  • If you realise you have made a mistake in a disciplinary process, you should try to rectify the situation.
  • However, any award could have been reduced, substantially, because of contributory fault, and because a fair procedure would have resulted in dismissal. This is called a “Polkey reduction”. We would advise strongly against relying on Polkey and contributory fault. It is a risky strategy, would not diminish the bad publicity of a finding of unfair dismissal and would probably still result in costly litigation.
  • Follow fair procedures as far as possible, but – it’s rarely too late to, at least, partly salvage the effects of an error.

Despite this ruling, it is always better to get things right during the initial stages, and limit the chance of any litigation and risk an argument that the fairness of an appeal is not sufficient to cure unfair elements earlier in the process.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

“Urgent action” is needed to give new and expectant mothers more protection at work after a “shocking” increase in discrimination, MPs have said. The Women and Equalities Committee is calling for a German style system, where it is harder to make women redundant during and after pregnancy.

In Germany, from the beginning of pregnancy until four months following childbirth, employers can only dismiss an employee in very rare cases – such as the company going bankrupt – and it needs government approval to do so. In the UK, although it is illegal to dismiss a woman for reasons relating to having a child, a company can find ‘other reasons’ for making her redundant.

Other recommendations from the report include more protection for casual, agency and zero-hours workers and making it easier for women to attend antenatal appointments. It also suggested a “substantial reduction” in the £1,200 fee for women taking a pregnancy-related discrimination case to an employment tribunal – and recommended the three-month limit on taking cases to a tribunal should be doubled to six months.

The report cited research from the former Department for Business, Innovation and Skills and the Equality and Human Rights Commission, which found that 11% of women reported being either dismissed, made redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job. The number of expectant and new mothers forced to leave their jobs has almost doubled to 54,000 since 2005, it said.

Business Minister Margot James said: “It is completely unacceptable that pregnant women and new mothers are apparently being forced to quit their jobs because of outdated attitudes. Tackling this issue is a key priority of mine and this government”.
The apparent increase in dismissals of new and expectant mothers may be due to changes in the law that the Government has made over the last few years. Some employers are now more confident that the dismissed mothers will not do anything about the situation, due to the high level of tribunal fees and the cap on unfair dismissal compensation (if discrimination cannot be proved).

Peter Stanway, our BackupHR™ legal expert comments:

We would be surprised if, in the current climate, the Government were to follow the committee’s recommendation. Employers would undoubtedly cry ‘foul’ and it comes at a time when the Government is trying to support business, not put more hurdles in the way. There is sadly, still a gap between anti-discrimination promises made within policy, and the everyday experiences of pregnant workers. Pregnancy discrimination is commonplace in our society and it occurs regardless of occupational status. Besides the damage this discrimination causes to women’s self-confidence and earnings potential, there is a resultant loss of value for employers.

Discrimination legislation is well-covered by employment law in the UK, but many employers get away with ignoring it. As an employer you should:

  • Encourage a supportive and inclusive culture so that people’s behaviour reflects the right values and behaviour around diversity,
  • Review how you recruit, retain and develop female talent, and how to improve workplace practices that enable women returners to feel welcomed back
  • Make the most of Keeping in Touch (KIT) days, which are voluntary as they are an effective means of reinforcing commitment from the employee to their employer and vice versa
  • Communicate your commitment via good policies and your actions
  • Very carefully scrutinise any suggestion from line managers that they need to re-organise/reduce the size of their department, resulting in putting a pregnant woman or woman on maternity leave at risk of redundancy.

Social expectations around diversity and equality in the workplace are changing so employers need to make sure they are not out of step with this reality.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

A Frenchman has hit the headlines for taking his former employer, Interparfums, to court after having an existential crisis because his job was too boring. Frédéric Desnard, claims his job was so dull he suffered a ‘descent into hell’ similar to burnout, but less interesting! He claims that his managerial job at the perfume company, which made him redundant 18 months ago, was so tedious he became exhausted and literally bored out of his mind. He alleges that it caused along with “serious depression”, an epileptic fit.

Peter Stanway, our BackupHR™ legal expert comments:

In what is believed to be the first case of its kind in France, Desnard is seeking €360,000 in compensation. He claims that between 2010 and 2014 he was ‘mis au placard,’ or ‘put in the cupboard’ by his then employer, a French phrase that involves giving employees little or no work, or menial tasks.

Is this a joke? Non! However his case shapes up, it is interesting for several reasons apart from wry amusement at French employment law.

The term “burn out”, when employees go sick due to over-work and stress, is well known. However, this individual has accused his employer of something much worse – being bored. Or as the French press are calling it, “bore out”.

The main legal argument being pursued by his lawyers is that he was intentionally side lined so that he would have no chance of promotion and become so bored that he would leave without redundancy payments or any other compensation.

In the UK, to succeed with a claim for constructive dismissal, the employee must show that they were entitled to resign by virtue of an employer’s conduct. Essentially, there has got to be a repudiatory breach of contract on the part of the employer which is sufficiently serious to justify the employee resigning. Such a claim based on the facts presented would probably not succeed in the UK but it might possibly if the actions of the employer were deemed to have been deliberate to get him to leave.

We are more interested in the case insofar as it relates to job design. Although in many organisations, formal job design is considered passé, there are clear advantages to it as part of an integrated approach to workforce strategy. With the increasing scope and diversity of tasks that individuals perform each day, it is essential that job design enables employees to respond to organisational needs quickly and effectively, and does not unnecessarily restrict them. For example, the practice of multi-skilling and rapid retraining will ensure that individuals’ skills remain up-to-date and match the changing nature of work.

Even though job standardisation is inevitable in certain jobs, such as manufacturing lines or call centre operator roles, employers should still take care to ensure that the link between task and engagement is recognised and that employees derive meaning and satisfaction from their jobs. Thoughtful job design and its execution not only ensure that the capability to deliver current organisational objectives is in place, but it also builds the flexibility and agility to meet changing business needs.

The most important methods of job design are:

  • Work simplification which breaks down jobs into small parts and is efficient but the jobs can be boring so can be counter-productive.
  • Job rotation simply moves people around to reduce boredom without really changing the job.
  • Job enlargement involves adding more tasks to a job so giving more variety and potentially more job satisfaction.
  • Job enrichment involves adding motivating factors to the job by adding more responsibility and freedom. It is about adding depth and control to the job.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.