There is a raft of government measures in place to support working parents and help them achieve a better work-life balance. One of the government's aims is to reduce the "long hours culture" that has been an accepted, or almost accepted, practice in Britain for many years.
When viewed in this context, the workaholic employee who consistently works excessive hours and refuses to take holidays may appear incongruous. Given that working excessive hours on a regular basis is neither effective nor productive, it is strongly advisable for management to take active steps to regulate such employees' working habits.
Statutory limit on working hours
The Working Time Regulations 1998 (SI 1998/1833) imposed a duty on employers to limit their employees' working hours to no more than an average of 48 hours a week, as measured over a "reference period" (normally 17 weeks, but longer in certain cases).
However, the UK took advantage of a permitted derogation and implemented what is generally known as the "opt-out clause" - an option for individual employees to work longer than 48 hours a week. This means that staff can voluntarily agree to exceed the average 48-hour limit by signing a document indicating their willingness to do so. Employers must maintain a record of those who have signed such an agreement.
Because of the opt-out clause, workaholic employees are essentially given a free hand to work as many hours as they want, unless they work for one of the enlightened band of employers that have formulated and implemented a policy to manage working hours and prevent excessive working. It is, arguably, up to management to prevent individuals from working excessive hours because the law does not do so directly.
The European Parliament had proposed to amend the Working Time Directive (now 2003/88/EC) to prevent member states allowing employees to opt out of the 48-hour limit, but failed to reach agreement on this with the member states and the European Commission. The opt-out clause therefore remains in place.
Common law duty of care
One important point to consider is that, even where long hours are worked voluntarily, an employer that condones an employee's extreme working habits may be in breach of the common law duty of care that is implied in every employee's contract of employment. If, for example, an employee's excessive hours were due to an unrealistically high workload, and if such circumstances were to cause the worker a build-up of stress that led to illness, the employee could bring a claim for personal injury against the employer.
In the absence of any arrangement or agreement to the contrary, the Working Time Regulations 1998 authorise employers to nominate days on which an individual must take some or all of his or her statutory annual leave.
The manager of a workaholic employee could provide written notification that he or she must take leave on specified dates if, for example, the individual had failed to take or apply for any holiday leave by, say, the end of September.
The only condition is that the employee must be given notice at least twice the length of the stipulated holiday period. So a minimum of four weeks' notice would be needed to require someone to take two weeks' leave from a specified date.
Working hours policy
The best starting point for an employer to manage its employees' working hours and ensure they are kept to a reasonable level is to introduce and apply a policy on working hours.
Such policies should state clearly that the employer has a responsibility to take care of employees' health and welfare and that, as part of fulfilling that duty, the employer aims to ensure that no employee works excessive hours on a regular or consistent basis.
The policy should encourage employees to achieve a work-life balance and to work no more than a defined number of hours on any one day, and no more than a set number of days in any one week, unless there are exceptional circumstances justifying a temporary need to work longer hours.
The policy should further state that all employees are required to take rest periods, rest breaks and a full period of annual leave each year. After that, it should be the responsibility of each line manager to ensure the policy is translated into practice for all of his or her staff.
To achieve effective implementation of such a policy, there may first have to be a review of employees' job responsibilities and duties to determine whether any employee is burdened with a workload that is not realistically achievable within a reasonable number of hours each week.
Targets, deadlines and available resources should form part of that review so that it can be established whether or not they are reasonable and realistic. Changes may have to be made in terms of the level of available support before anyone can reasonably be instructed to reduce his or her working hours.
The question of each employee's working hours and time off work is very much a management issue running alongside the duty to take care of employees' health and welfare.
Once an effective policy has been implemented and employees made aware that they are expected to work reasonable hours and take proper breaks from work, it will be up to management to ensure that staff abide by the policy.
Dealing with workaholics
• Make sure the 48-hour average weekly limit is complied with and any employees who are likely to exceed the limit have signed a document indicating their willingness to do so.
• Recognise that an employer that condones an employee's excessive working hours may be in breach of the common law duty of care implied in every employee's contract of employment.
• Adopt a practice of giving employees who fail to organise their own holiday dates written notification that they must take holidays on specified dates.
• Formulate and implement a policy to manage employees' working hours and prevent excessive working.
• Delegate responsibility to all line managers to ensure the policy is translated into practice for all the staff they manage.
• Conduct a review of employees' job responsibilities and duties in order to determine whether any employee is burdened with a workload that is not realistically achievable within a reasonable number of hours each week.
• Be willing to introduce any necessary changes in terms of the level of support made available to staff before instructing them to reduce their working hours.
• Once a policy to regulate working hours and holidays has been implemented, take steps to manage those employees who refuse without good reason to abide by the policy
The author, Lynda Macdonald, has been a freelance trainer and consultant since 1987, specialising in employment law since 1995. (Published 05/08/2011)
This article appears on www.xperthr.co.uk