· 2 min read · Features

Legal issues on employees working excessive hours

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The Reading employment tribunal recently heard how socialite Countess Maya von Schoenburg (the respondent), friend of Lord Rothschild and ex-wife of Mick Flick, told her housekeeper not to get pregnant unless she told her first.

The housekeeper, Miss Filipowska (the claimant), told the tribunal that the respondent suggested on numerous occasions that she should discuss family planning with her before getting pregnant. When the claimant informed her that she was pregnant in autumn 2012, the respondent told her that she ought to have discussed enlarging her family with her first. Three days later the claimant was dismissed.

The claimant was originally employed as a housekeeper but, after the departure of the respondent's nanny, her role changed and she became an on-call housekeeper, nanny and taxi driver. The claimant's working days became very long and she would often work from 8 am and not finish until 3 am.

The claimant claimed for unfair dismissal and sex discrimination, but the case raises an interesting point about the claimant's long working hours. The respondent was constantly requiring the claimant to work extremely long hours. This article considers the legal implications for employers who require this of their employees.

The Working Time Regulations 1998 (WTR) state that a worker's average working time (including all overtime) must not exceed 48 hours per week. An employer must take all reasonable steps to ensure that this limit is complied with. A failure to do so is a criminal offence punishable with a potentially unlimited fine. This limit does not apply to autonomous decision makers and those who are responsible for managing their own working time, which will cover most senior executives.

Workers can agree to perform work in excess of the 48 hour limit by signing a short document, generally referred to as an opt-out agreement. However, even if a worker has agreed to opt out of the limit, they should not be required to work excessively long hours if this creates a reasonably foreseeable risk to their health and safety.

Long hours are often cited as causing injury to health in stress at work cases. In the case of Hone v Six Continents Retail Limited a pub landlord was awarded £21,840 in damages for psychiatric injury caused by stress at work. Mr Hone claimed that he was working between 82 and 92 hours per week due to the lack of any management and administrative support at the pub. He had also refused to sign an opt-out agreement due to his concern about the hours that he was working. Eventually he collapsed at work following giddiness and chest pain and did not return to work.

The court found in favour of Mr Hone, placing emphasis on the fact that a month before he collapsed at work he had complained to his employer that he was working very long hours and that he was tired. This, the court stated, made the subsequent psychiatric injury reasonably foreseeable by the employer, who did not act upon the complaints. The fact that the employee had refused to opt out of the 48-hour week under the WTR also assisted the employee in establishing the employer's liability.

Employers need to have in place procedures that enable them to monitor employees' working hours and to train managers to recognise where excessive hours could lead to stress. Employers also need to avoid placing unreasonable demands on employees by prioritising workloads and appropriate delegation of duties. Employers who fail to do the above risk being subject to claims for damages arising out of any injury caused as a result.

It seems that the countess has many lessons to learn about her responsibilities as an employer from this case. A failure to change her approach towards employees will expose her to future claims for not just sex discrimination but also in respect of any injury caused resulting from requiring excessive hours to be worked.

Ben Stepney is a solicitor in the employment team at Thomson Snell & Passmore