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Home | News & events | Legal updates | Presenteeism: A clear and present danger?

Presenteeism: A clear and present danger?

03 November 2011

A recent survey has found that just over half of British workers used up their full holiday entitlement last year. These figures illustrate the growing trend of ‘presenteeism” in the UK’s workforces; should employers be worried?

Taking the Blackberry on holiday, checking e-mails from their sickbeds, rushing back to the office before they are properly recovered. In the present economic climate it is easy to imagine why employees may feel that they shouldn't be seen to be absent for any reason (even if it is for a perfectly legitimate reason). Technology which was supposed to enable a better work life balance has become a ball and chain for many, so what should employers do (if anything) when faced with employees who just won't log off?

Legal considerations for employers

First and foremost employers have a legal duty to take reasonable care for the health and safety of their employees.  This covers not just individuals but also the welfare of the wider workforce. It is a broad obligation that extends to ensuring that employees are not working excessive hours and are suitably rested.  Therefore employers need to encourage employees to take at least their statutory annual leave entitlement and ensure as far as possible that this is a proper, uninterrupted break from work.
An employee who is consistently required to cancel holidays or is constantly bothered by the office while on their holidays may be able to argue that their employer had breached the implied term of trust and confidence and claim constructive dismissal.

The same duty applies in respect of employees who are ill: their condition could be exacerbated (and overall absence extended) if they are actually working from their sick beds rather than being allowed, or taking the opportunity, to recover.  In an extreme case an employer who fails to recognise and manage this risk could be liable for personal injury. 

Conversely, in respect of long-term sick employees who may be disabled within the meaning of the Equality Act 2010, an employer has a duty to make reasonable adjustments.  This could include using technology to enable more home working.

Practical tips for employers

Consider amending sickness policies to make it clear that you do not expect an employee who has called in sick to monitor and respond to their e-mails.

• Implement a return to work interview procedure to ensure that employees who are coming back to the office after a period of absence are properly recovered.  Consider making it clear in any such policy that the employer reserves the right to ask the employee to remain at home (on full pay) and/or undergo a medical examination so that the employer can satisfy itself that the employee is fully fit to return to their role.
• Although an employee may present a Fit Note which states they are able to work, the GP doing the “box ticking” is unlikely to have a full understanding of the actual demands of the individual’s job. An employer may therefore need to seek further medical advice from an occupational health practitioner regarding the employee before allowing them to return to their role.
• Ask your HR team to send reminders at suitable points in the holiday year to those who have not taken many (or any) holidays.  Making it clear that employees must “use or lose” annual leave could encourage uptake.
• Put in place a formal procedure for pre-holiday handovers so that work is properly distributed and covered during an employee’s annual leave and they do not have to be disturbed by or involved in work while away.

Comment

In an age where the line between work and home is increasingly blurred, the problem for many employers is not that they are making unreasonable demands on their employees but that employees are willingly taking on an unreasonable workload.  Employers need to be alive to this possibility, to monitor their workforces for signs of problems and ensure they engender a culture where presenteeism is discouraged.

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

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Helena Derbyshire

Partner
T: 03700 86 6809
I: +44 (0)1489 61 6809
E: helena.derbyshire@shoosmiths.co.uk