The dangers of working long hours - employment law issues behind the headlines
The perils of long working hours have featured extensively in the media this summer. In June Goldman Sachs announced a cap of 17 hours on the working day of its summer interns following the tragic death of a 21 year old Bank of America Merrill Lynch intern who was found dead in the shower after working 72 hours in a row. An inquest found the cause of death was an epileptic seizure that could have been triggered by his long hours.
Then, only last week, the results of study led by University College London caught the attention of the press. The research indicates that employees working late into the evening are at increased risk of suffering a stroke.
It was observed that those who work more than 55 hours a week have a 33% increased risk of stroke compared with those who work a 35- to 40-hour week. The authors hypothesised that long hours may be associated with repetitive triggering of the stress response; physical inactivity; and a propensity to ignore warning signs and symptoms, all contributing to the increased risk.
Dangers of a long hours culture – what does the law say?
For British workers, in particular, the apparent health risks are alarming, since full time employees in the UK work longer hours than their European counterparts. Trade union leaders have long raised concerns about a long hours culture in our workplaces, while various studies have challenged the idea that longer hours equals higher productivity.
The national long hours trend seems impervious to the legislation on Working Time which has been in place in the UK since 1998, leading some to query its effectiveness. These health and safety driven regulations cap the working week at 48 hours, so why has it not made a bigger impact on the UK’s working hours statistics?
The answer probably has a number of strands. Firstly, although the UK’s full time workers work longer than the European average, the average number of working hours for full-timers in the last major survey in 2011 was found to be 42.7 hours, below the legislative cap. In addition, employees can, and regularly do, opt out of the 48 hour maximum which is permissible under the legislation. This is common practice in professional salaried positions as well as among senior managers.
Finally, there may be some truth in the theory that long hours is ingrained in the national culture, with reports that ‘presenteeism’ has been exacerbated by reduced job security as a result of the economic climate.
What types of claims might employees bring?
A ‘lunch is for wimps’ culture has the potential to undermine the aims of the legislation which regulates rest breaks as well as the length of the working day. The Working Time Regulations give workers who work more than six hours a day an entitlement to a 20-minute break away from the desk. If, however, they feel under pressure not to take the time, either due to workload or workplace culture, the legislation may have little value.
Such employees may be unlikely ever to raise a claim, and if they do, they may be unlikely to succeed; the Employment Appeal Tribunal has ruled [in the case of Miles v Linkage Community Trust Ltd] that a worker must make an attempt to take his break before his employer can be found to have deliberately refused it. This rules out legal recourse for employees who are too busy or too bashful to request a break.
Employers, too, will have concerns over the recent reports on the risks associated with long hours working. Their interests are not served by policies which risk waning productivity or increased sickness absence. To date, the legal threat has mainly come from personal injury claims focused on work related stress and constructive unfair dismissal claims, with claims for breaches of the Working Time Regulations relating to weekly working hours and breaks being relatively few and far between. It is, however, quite conceivable that, with a growth in evidence linking long hours to physical ill health, the future may see an increased risk of litigation based on physical ailments alongside stress related illnesses as traditionally perceived.
For the time being, it perhaps remains unlikely that a worker could successfully sue his employer for negligently causing his stroke by operating long working hours. Dr Tim Chico, reader in cardiovascular medicine at the University of Sheffield, is reported in the Guardian as commenting that the UCL study does not prove long working hours could cause stroke or heart disease since demonstrating a direct link would require thousands of people to be allocated randomly to certain levels of working hours and to be observed for years, while keeping all other behaviours constant.
Nonetheless it is possible that if a growing body of evidence supports a strong correlation between long working hours and stroke or other ailments, the day may not be so far off when a court is willing to accept, on the balance of probabilities, a causative link.
Managing the risk of employees working long hours?
So what can employers do to manage the risks? A good starting point is ensuring compliance with both the letter and spirit of the laws in place. This requires monitoring employees’ working time and ensuring appropriate opportunities for rest breaks to stay compliant with the Regulations.
Beyond that, tackling a culture of long hours and presenteeism could reap dividends. Leading by managerial example and rewarding productivity outputs over apparent inputs could help to dispel perceptions that round the clock attendance is necessary to impress.
Of course many jobs simply require longer hours from time to time. Here, measures to promote the taking of breaks, as well as generally ensuring the work environment is designed where possible to promote physical activity and a healthy diet, will be key.
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