Daily Maverick
Dailymaverick logo

Opinionistas

This is an opinion piece. The views expressed are not that of Daily Maverick.....

Why remote employees should have the right to disconnect after working hours

Omphemetse S Sibanda
By Omphemetse S Sibanda
5 Feb 2023
Facebook
0
The South African government, in particular the Department of Labour, should seriously consider the right to disengage – the right of employees to not be constantly on call.

Has any South African company, institution or government department conducted a study of the effects of remote work on employees during the Covid-19 pandemic?

Has any researcher asked questions such as: Do you get anxious and depressed when you get a call or email message from your employer or line manager after hours? Would you prefer to have a number for work calls that you can turn off outside of office hours? Do you feel burnt out?

Has working from home increased your family’s quality time and allowed you to focus on supporting your children as they go through life’s journey, including school? Do you feel like you’re constantly “on stand-by” even though you are not in the essential services sector?

The sudden switch to remote working or working from home blurred the lines between home life and working hours.

Stellenbosch University Emeritus Professor Karin Calitz says this blurring of work and personal boundaries created an environment where employees were reachable 24/7. They’re “doing more than they ordinarily would compared to being in the office, which is regulated by office hours.”

With employers expecting that workers must be available at all times on phones or by email, the basic conditions of work have become the number one casualty. A study titled Burnout: The problem of overworked employees in a country with an unemployment crisis tracked working hours in more than 50 countries between 1950 and 2017. It found South African workers had some of the longest working hours in the world.

So prevalent is burnout in South Africa that Calitz, in a 2022 article for the journal Obiter, decried the lack of acknowledgement of burnout as a distinguishable mental disorder. 

She recommends that burnout be recognised as a distinguishable disease in South Africa with the necessary amendments made to the Occupational Health and Safety Act 85 of 1993; the reduction of working hours to 40 a week; and the adoption of the right to disconnect in the workplace.

As we head into 2023, the work environment is returning to normal. Learners are going to school as per normal. Universities have reopened their campuses for the return of students and staff members who have been working remotely or multimodally for three years since the outbreak of the pandemic.

But one does not expect to return to pre-pandemic normality. A blend of remote and office-based work remains necessary. Still, there is a need to prevent the kind of burnout that was seen during the pandemic when people were working from home.

Much is needed to reinforce the importance of re-establishing a work-life balance. This may require a serious consideration of legislating the “right to disengage” and revising the Basic Conditions of Employment legislation and related employment codes.

The European Union (EU) defines the right to disconnect as “a worker’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails or other messages, during non-work hours”.

Always being on call is potentially harmful to family life and workers' health: “The widespread use of smartphones and other digital devices means that being always ‘on call’ has become a reality in many workplaces, as continuous remote access can create pressure for employees to be constantly accessible,” the EU notes.

“The expectation that workers will be available at almost any time for online or mobile communication is now considered potentially hazardous to workers’ health.”

Numerous countries have now legislated the protection of the “right to disconnect”.

Belgium, for example, passed a law in February 2022 protecting civil servants from reprisals for switching off work emails, texts and phone calls received out of hours.

Belgian Public Administration Minister Petra de Sutter has said she believes that the introduction of the right to disengage will boost efficiency. Otherwise, she says, “the result will be stress and burnout and this is the real disease of today”.

Work-life balance legislation that contains the right to disengage is in place in several countries, such as Portugal, France, Chile and Ireland.

If the contract states that the official working hours are between 7.45am and 4pm, employees should not be scolded for not answering work calls and emails out of those hours.



Visit Daily Maverick's home page for more news, analysis and investigations



No ‘right to disconnect’ in SA


I perused the South African Basic Conditions of Employment Act and the Labour Relations Act to determine if workers in South Africa have the “right to disconnect” after working hours. The outcome is that there is no such right in South Africa.

The right to disconnect exists by implication as informed by the employment contract. It is overdue for our basic employment conditions and standards to be overhauled to expressly deal with the problem of people working extended hours and give workers the “right to disengage”.

An article in Daily Maverick by Prof Marius van Staden of the University of Johannesburg painted a dire picture for South African employees doing remote work and the advent of the Fourth Industrial Revolution.

Van Staden says that “although increased flexibility has been a godsend to many employees throughout the pandemic period, it has also meant that they have had fewer opportunities to disconnect from their work. Many employees now find themselves bound by the so-called ‘digital leash’.

“Employers frequently contact employees outside of typical working hours. They must work through lunch or other breaks regularly and are penalised for not being available outside usual working hours. Their co-employees receive preferential treatment for staying connected and working after regular working hours.”

Van Staden argues that “South Africa would do well to adopt a code of good practice like the Irish Workplace Relations Commission’s Code of Practice for Employers and Employees on the Right to Disconnect.”

Calitz says legislation changes or a national code of practice need to be put in place in South Africa to allow workers to “disconnect” from work, as burnout among employees has become a growing concern.

The chilling message and reminder by Van Staden is that “employers have always had a natural tendency to intrude on their employees’ time, and technology has only made this type of unwanted invasion simpler. Legislators must understand that technology is being abused in ways that are harmful to employees.”

Kenya legislates work-life balance


Kenya has taken the lead towards becoming Africa’s first country to introduce work-life balance legislation and protect workers through the “right to disengage” after working hours.

Should the Kenyan Employee (Amendment) Bill 2022 be enacted, employers will be prevented from expecting their employees to answer calls, text messages or emails outside working hours, at weekends or on public holidays.

In terms of the Article 27A (1) of the Kenyan bill, “an employee has the right to disconnect from their employer”. 

Without necessarily discarding the value-add of the digital age to many workplaces, this bill acknowledges that constant “digital connectivity has also been noted to be slowly eroding leisure time for employees hence affecting their work-life balance”.

I am envious of workers in Kenya as they may soon be protected against burnout, fatigue and hours of unpaid work, thus having more time with their families. Article 17A(7) states that: “Where an employer contacts an employee during the period when there is no mutually agreed out-of-work hours, the employee — (a) shall not be obliged to respond and shall have the right to disconnect; and (b) may choose to respond, for which the employee shall be entitled to get compensation.”

The bill has built-in protection for employees against reprisals by providing that “an employee shall not be reprimanded, punished, or subjected to disciplinary action if the employee disregards a work-related communication during out of work hours.”

Any employer found in violation of the work-life balance rules would face fines of 500,000 shillings (about $4,000) or imprisonment for a term not exceeding one year or to both. According to Article 27A (5), for instance, “the right to disconnect shall be limited only to the extent necessary to address an emergency arising out of the work falling within the responsibility of the employee”.

A report in the Washington Post tells of Daniel Mwangi (37), who quit his job as a retail manager in Nairobi in 2021 “after being fed up with 4am emails and 9pm check-in calls from his boss. He had begun to lose weight and felt anxious much of the time.” The next job he took wasn’t much different, and he eventually transitioned to self-employment.

One does not expect all workers to exercise their right to disengage for varied reasons including, but not limited to, wanting to get promoted; being seen as the best employees, expectation of better pay in the future, and others. 

“On Fridays, I carry files home to work on during the weekend. I’m not paid for it but I know my diligence will earn me better pay in future,” said a credit officer at Nairobi-based microfinance quoted in an article in Quartz.

The South African government, in particular the Department of Labour, should seriously consider the right to disengage. Private institutions, companies and other workplaces must consider implementing a work-life balance approach.

Some companies have adopted policies and practices to limit digital connectivity blurring work-life boundaries. For example, some German car manufacturers freeze email servers overnight and impose restrictions on employees accessing emails during holidays.

Four-day week


After a successful four-day work week experiment in the UK and other developed countries, a similar endeavour is planned by the 4 Day Week SA Coalition.

Perhaps it’s not such a bad idea for South Africa to have a broader discussion on the possible enactment of the work-life balance legislation with a guaranteed right to disengage provisions, and well-thought-out exceptions for essential services and other professionals in a wide variety of occupations – utility workers, engineers, information technologists and journalists among them.

Truly caring employers will appreciate that extending the right to disengage to their valued employees is not necessarily an invitation for ill-discipline in the workforce.

The flip side of the argument is that South African employers can be held contractually liable by their employees because of nonstop engagement after hours, which is not always compensated as overtime work.

I would even argue that an employer may be civilly liable to employees for alienation of affection from families, children, husbands, wives, partners etc due to always being on call, even after hours and on holidays. In some jurisdictions, excessive after-hours engagement may be considered workplace bullying.

It is 12.57pm on Sunday and I have been glued to my device since 8am instead of making my family the best braai and sipping a nice glass of Star of Bombay. My family always complains I have been chronically addicted to my device since the pandemic. It is time to disconnect if I believe in the argument presented here. DM

Categories:

Tags: