In today’s ‘always on’ society, taking a holiday and returning to work afterwards can be a stressful experience for some workers and employers have been looking for imaginative ways to address this. To avoid the risk of disputes, however, employers should make their intentions clear in advance.
The widespread use of smartphones and notepads, which can be linked to work email accounts, has led to a change in working habits, which means many people find themselves reviewing and responding to work emails in the evening, at weekends or while they are away on holiday. The emphasis on customer service and responsiveness in some industries has encouraged workers to stretch their working days in this way. Employers recognise, however, that such working practices can lead to individuals getting over-worked and stressed and research has shown that this can impact on productivity.
To address this, some employers have introduced measures such as blocking access to work email while people are away on holiday and allowing them to erase the complete contents of their inbox on their return to work to help ease them back into work. In some instances, employers may also choose to monitor their employee’s internet use and their email, text or phone messages while they are away.
Employers know that workers need to take a proper break when they are taking time off. When an employee is well rested they are more likely to be motivated and energised. It can also be a health and safety issue if an employee does not take proper breaks and in some instances this could have a detrimental impact upon sickness absences. However, many people use their work phones and notepads for both work-related and personal communications and therefore it is difficult to simply switch them off. As a result, emails and text messages can become intrusive.
While it is understandable that employers want to do something about this, it is important that they go about this in the right way and follow best practice to minimise the risk of workplace disputes.
Blocking access to work email while employees are away on holiday is permissible under current UK law. However, employers are advised to make sure that there is a company policy in place and communicate it to all workers. The policy should also make it clear whether the rule applies to all annual leave.
Similarly, for employers that would like to introduce a policy allowing workers to erase the content of their inboxes on their return to work, this should be managed appropriately. For example, if the IT department is instructed to do this on behalf of the employee, then consent should be obtained beforehand. Ideally this should happen as soon as the employee commences work.
The monitoring of internet use and email activity is more tightly regulated. Employers are permitted to monitor an employee’s work email, internet and text messaging activity for example if they have reason to believe an employee is doing something they shouldn’t, which could involve criminal activity, or where it is in the interests of national security. In some instances, monitoring may also be permissible for the purpose of ensuring compliance with the employer’s rules and procedures, but the law states that employees must be warned in advance that this may happen.
At this time of year it is especially important that employers are as open as possible with their employees about any monitoring that could take place while they are away on holiday and state the business reasons for this. Having a clear communications policy in place, preferably signed by employees, can also help to ensure the entire workforce is fully aware of what might happen.
Some employers may believe they already have the consent of their employees to access their inbox or monitor their communications activity because they have included clauses referring to their use of investigatory powers in employment contracts. However, this may not be enough to protect them in all circumstances.
By Aye Limbin Glassey, employment law partner at Shakespeare Martineau