The economic downturn has led to a rise in unemployment and an associated increase in competition for jobs, as well as an increase in workload and pressure on workers. Together with developments in technology, such as wi-fi and smartphones, this has led to a culture of people working outside their core hours and even working on holiday. Joanna Marshall of Charles Russell LLP looks at the legal risks to employers of employees carrying out work while on annual leave.
August is traditionally the peak holiday season in the UK but, according to a 2,500-strong poll recently commissioned by Regus, instead of resting, 39% of employees will be working up to three hours each day while on holiday and 8% will be working more than three hours per day. In addition, of those surveyed, 25% declared that they would be operating on a slightly reduced "business as usual" while on their holiday.
Under the Working Time Regulations 1998, workers are entitled to 28 days' paid holiday per leave year including bank holidays (or the equivalent pro rated amount for part-time workers), although they can receive additional holiday under their employment contracts. The legal entitlement to holiday is intended to provide people with a period of rest from work. As Lord Justice Mummery stated in the recent case of NHS Leeds v Larner, the purpose of paid annual leave "is to enable a worker to enjoy rest, relaxation and leisure: it is for the protection of health and safety" and this is why pay in lieu of statutory holiday is prohibited except where a worker's employment is terminated.
The impact of employees working on holiday
While it is very easy with today's technology to work on holiday, if workers are not able to switch off and relax then they are less likely to return to work feeling re-energised and motivated, and productivity is therefore likely to suffer. There is also a risk that staff who work while on holiday will not get the health benefits of a complete break and will, as a result, go on to develop stress-related ill health. Working on holiday can also interfere with precious family time and can therefore have a detrimental impact on relationships and potentially cause further stress. Stress is the main cause of long-term sickness absence in the UK and can affect the productivity and profitability of a business.
That said, for some, working on holiday is less stressful than the pressures of getting things done before going away or returning to a mountain of work afterwards. In addition, for executives and small companies, working on holiday may be essential for the smooth running of their business.
Legal risks to the employer
It is not possible for employees to contract out of their statutory holiday entitlement. Therefore, there is a risk, although as yet untested, that if workers are required or pressurised to work while on holiday they could bring a claim that their employer refused to permit them to take their statutory holiday entitlement in breach of the Working Time Regulations. However, if workers choose to work while on holiday, although they are not required to do so by their employer, then they will not be able to bring such a claim.
There is also a risk that employees who work on holiday may develop stress. Further, if a culture of employees working while on holiday develops it is likely to set a dangerous precedent that employees are "on call" at all times and thereby significantly increase the likelihood of the workforce being affected by work-related stress.
Under health and safety legislation there is a general duty on employers to ensure, so far as is reasonably practicable, the welfare of all their employees at work. Employers also have a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. Breach of health and safety legislation could result in criminal sanctions, although this is unlikely in the context of employees working while on holiday.
However, employers are also under a common law duty to take reasonable care for the health and safety of employees in the workplace. Therefore, employees suffering from work-related stress could bring personal injury claims against their employer. In addition, anxiety, stress and depression having a substantial and long-term adverse effect on an employee's day-to-day activities may amount to a disability under the Equality Act 2010. In such circumstances, employers are exposed to possible claims for failure to make reasonable adjustments.
What should employers do?
It is important that employers investigate the underlying cause of workers working on holiday as there may be issues of capability or capacity and the business may need to look at ways of increasing efficiency and productivity to prevent their staff from carrying work over into their holidays.
While some advocate working on holiday, in the light of the impact it may have on business and the risk of litigation, employers would be wise not to require or to encourage employees to work or to be constantly contactable while away. The safest approach would be for employers to implement a policy that prohibits working on holiday. However, such a rigid policy is unlikely to be workable in practice and a better approach might be for businesses to encourage a culture of employees not working or communicating with work whilst on holiday except where absolutely necessary.
Joanna Marshall, associate, Charles Russell LLP