If an employer decides to support the popular trend of employment relations flexibility and in addition to comfort in the form of work benefits such as business phone, laptop or tablet also grants its employees the benefits of home office or teleworking, he should not forget about risks that may arise this flexibility in connection with digitization of the working environment, in particular as regards the mental health of the employee.
There are two main risks associated with the use of modern information and communication technologies while performing work, it is the phenomenon referred to as „24/7 work” and the phenomenon „technostress”. This article deals with the phenomenon of technostress, in another words the risks that may arise if employers will not prevent the creation of technostress in the workplace.
Introduction
Employment relations in the 21st century are increasingly dominated by the word „flexible”. The traditional scheme of employment relationship defined by the law, where the employee-employer relationship is clearly a subordination relationship, ceases to correspond with the actual state. The disintegration of the subordination principle is now supported by the trend of digitization penetrating into employment relationships and by the increasing emphasis of employers on the well-being of employees, which is stimulated by a large number of employee benefits.
A complementary part of this trend is the flexibility of working time itself, where employers insist on the outcome of the job regardless of where the job is being done, rather than the presence of the employee at the workplace. Such a model, while attractive to many potential job seekers today, is fundamentally attacking the traditional bipolar scheme of distinguishing between working time and rest periods. Working time is defined by the Labour Code as the period during which the employee is obliged to perform work for the employer and the period during which the employer is ready to work in the workplace according to the employer’s instructions. The opposite of working time is the rest period, ie the period which is not working time.
At this point, the question is whether the strict division of space and time is still important as working time is difficult to quantify due to its flexibility, because the employers now increasingly emphasize the outcome of their work regardless of the time and space in which they will carry out the work. This phenomenon where it is practically impossible to distinguish when a certain part of the day is working time and when it is a rest period is described by some authors as “24/7 work”.
Paradoxically, information technology usually does not increase the employee’s free time, but increases the need for his or her time autonomy and preparedness to perform work tasks, regardless of where or when is the employee located. Therefore, it is not a situation where the employee actually performs the given tasks 24 hours a day, 7 days a week, but a situation where the employer, due to the constant connection of the employee to the mobile phone, internet, e-mail or social network assumes that the employee is at least theoretically ready to perform work tasks anytime and anywhere.
Technostress
The situation described above, when an employer within the flexible working time may assume total commitment of their employees, especially in terms of their ability to respond virtually anytime and anywhere to work correspondence, text messages or phone calls, is a significant stress factor for many employees which in the worst possible way can have a significant impact on their physical and mental health.[1]
Even though the employment relations in the 21st century are dominated by the word “flexible”, the increasing phenomenon of „24/7 work” proves that their flexibility is often only seeming, and on the contrary, employees may be under more pressure than if their employment relations would have set clear barriers between working time and rest period. Although they may at least formally set them according to the concluded employment contract, the actual situation may not correspond to them.
The law does not impose an obligation on employees to respond to employer’s work e-mails and text messages outside working time, so this obligation cannot impose neither employment contract. However, an employee’s concern about the employer’s reaction if he or she does not check the mailbox or mobile phone, thereby they could potentially neglect the timely completion of a new job, may not allow the employee to tell the employer that checking the mailbox or responding to a text message outside working time is not his duty.
Whatever are the causes of the employee’s stress, it does not change the fact that the employee may be constantly exposed to the stress, and that this stress may be largely due to both the overuse of information technology and the employer’s accent on ability to use them in performing work tasks any part of the day.
For above described type of stress that may affect employees as a result of the apparent flexibility of working time and the overuse of information technology, has been in recent years (especially abroad) established the old-new term „technostress”. The current concept of technostress does not assume that employees suffer from fear of information technology, but that they suffer from the employer’s demand for their permanent use, which virtually makes it impossible for any employee to tell whether their working time has ended or not, ie whether not responding to the e-mail communication outside formal working time may be subject to a penalty.
Although this phenomenon may be by some employers downplayed and perceived as a manifestation of the worker’s hypersensitivity and unwillingness to work, the exact conclusions of the medical science knowledge remain indisputable. According to these conclusions, technostress leads to increased mental exertion and stress of employees, which in the most extreme form can lead to burnout, which manifests by cynicism, reduced empathy, emotional cold, distrust, distance, communication disorders, reluctance to work, and eventually also avoiding contact with colleagues. [2]
Possible legal consequences of technostress de lege lata
The question can be whether the legal system offers ways that can lead to legal consequences for the technostress in the workplace.
Although technostress is not universally defined or recognized as an independent occupational disease, its content can simply be summed up as an action by which an employer creates an environment in which an employee against his or her will may be forced to use information and communication technology and may impose work tasks to employee of even bullying nature. Therefore, it may be an act of an employer that is illegal and discriminatory.
Article 1a of the Labour Code exhaustively defines the general principles of employment relations and between them the principle of equal treatment and non-discrimination. This principle is the way to the first possible legal introduction of the term technostress and its consequences through the Anti-Discrimination Act (Act No. 198/2009 Coll.), because the Labour Code in Section 17 refers to its use in case of violation of the prohibition of discrimination in employment relations.
On the other hand, the question arises whether technostress, or the behaviour of the employer that induces it, is indeed a manifestation of discrimination against the employee. However strange it may be, in the diction of the Anti-Discrimination Act it is the manifestation of discrimination, because it considers for discrimination even harassment, which means unwanted conduct related to the grounds of discrimination, with the intention or effect of reducing the dignity of a person and creating intimidating, hostile, environment. The conduct of an employer requiring employees to be permanently available to carry out work tasks, even by e-mail or telephone, can act as a sign of discriminatory behaviour.
It could be argued here that this instrument of defence against technostress does not in any way address the issue of the causal link between discrimination and the employee’s emergence of technostress. In order to regard an employer’s conduct as the cause of the employee’s technostress, the necessary presumption of discrimination must be fulfilled, namely that one employee is treated less favourably than another employee in a comparable situation. It can be concluded that, unlike in other types of discrimination, it is not necessary to compare the conduct of the employer in question with the conduct of the employer against other employees, as the legal prohibition of discrimination is violated by the act itself and the emergence of technostress is only a secondary consequence of violating this legal prohibition. [3]
Another possible consequence of creating technostress in and outside the workplace is the possibility to invoke the general private law principle of the prohibition of abuse of rights. Although it is not expressis verbis enshrined in the current Labour Code (as opposed to the previous legislation), Section 4 of the Labour Code allows it to be called upon through the subsidiary application of the Civil Code where the Labour Code cannot be applied. It is irrelevant whether the employer’s conduct towards the employee is formally lawful. The decisive factor is the actual situation, when the employer pursue the employee’s damage by his or her actions. The Supreme Court has the same opinion, according to which “the exercise of the law, even if it is formally in accordance with the law, is in fact only the seeming exercise of the law; the purpose here is not to exercise the right, but to harm another”. [4]
Apparently the most serious consequence for employers resulting from technostress may be if an employee sought through a court compensation for harm caused by technostress. In that regard, the Supreme Court provided that “The employer’s general liability for damage pursuant to the provisions of Section 265 of Labour Act is not excluded even if the damage consists of employee health damage. If the employee seeks compensation from the employer for health damage caused by the employer’s breach of legal regulations or intentionally acting against good morals, and it is neither an accident at work nor an occupational disease, such a claim must be assessed under Section 265 of Labour Act.” [5]. This consequence may be risky for the employer only if the employee will be able to bear the burden of proof and will prove that there is a causal link between the employer’s behaviour and the emergence of technostress, which in practice will not be without difficulties. [6]
Possible legal consequences of technostress after the upcoming amendment to the Labour Code
The possible legal consequences for employers arising from the technostress in accordance with the applicable legislation have been all described above. However, in the future other consequences may be also considered, which could arise from long-awaited amendment to the Labour Code on which was repeatedly agreed on 14. 10. 2019 by representatives of the government coalition, trade unions and employers through a gentleman’s agreement.
Apart from the enactment of technostress as an independent occupational disease[7], it cannot be ruled out that in view of the upcoming amendment to the Labour Code, the Czech legislature will not inspired by the French legislature, which decided to resist technostress and its negative consequences by enacting the so-called disconnection right (le droit à la déconnexion). [8] The content of this right is the possibility for employees, which work for employers with more than 50 employees not to reply to work e-mails after working time. This institute does not apply as a general prohibition for employers from contacting employees with work tasks outside their working time, but it guarantees employees that their failure to respond to these e-mails outside working time will not be considered by the employer as a breach of their duties. Likewise, employees who choose to respond to these e-mails outside working time cannot be privileged by the employer over those who have decided to use their disconnection right. [9]
Nevertheless, neither this legal institute is without a problem if Czech legislature would want to be inspired by it. In France, the disconnection right arises only after the workers finish working time. The basic prerequisite for the enactment and subsequent application of the disconnection right in the Czech Republic would be the ability to distinguish between working time and rest periods, which is increasingly difficult due to the widespread phenomenon of 24/7 work. If an employee is unable to determine with certainty whether his working time have ended or not, it will be equally difficult to say whether his disconnection right has already arisen and if he or she can use it with impunity.
In our opinion, the legalization of the disconnection right in the Czech legal system would be a complication for the employer only if the creation of this right would be bound to the employee’s end of formal working time according to the law or employment contract and not for the actual performance of work outside working time as directed by the employer by e-mail or text message. [10]
Conclusion
Even though there are several consequences resulting from the legal order concerning the creation of technostress, not all can be assigned the same severity in practice without proper context and specifications of each case.
We believe that the recovery of compensation and the invocation of prohibition of misuse are rather of the nature of consequences of technostress which can negatively influence the employer ex-post and thus at a moment when the damage occurs or at a moment of actual abuse of the law by the employer towards the employee. If the employer correctly prevents the emergence technostress, these consequences can be easily avoided.
However, this is different in the case of prohibition of discrimination under the Labour code and the Anti-discrimination Act which poses a certain degree of risk ex-ante to employers in relation to technostress. In our opinion, under current laws, the greatest risk for employers is if an employee would invoke discrimination prohibition under the Labour Code and the Anti-Discrimination Act even before the negative consequences of technostress would occur. The employer should therefore strictly comply with this prohibition in order to avoid the occurrence of technostress at all and thus avoid the need to remedy its negative consequences.
In the context of the prohibition of discrimination, it is also appropriate to draw attention to the situation where discrimination against an employee may occur ex post as an employer’s reaction to the employee’s decision to no longer take the distress associated with technostress, ie a situation where the employee decides not to respond to the employer’s e-mails and text messages after working time, and therefore the employer will discriminate against him ex post. Even this situation is, by its very nature illegal and it is therefore advisable to recommend that employers here strictly comply with the prohibition of discrimination.
The planned major amendment to labour law, which outlines are already (repeatedly) beginning to emerge, will also bring an interesting development within the protection of employees’ mental health.
If you have any questions about the issue described above in relation to current legislation, we are at your disposal. Do not hesitate to contact us.
Mgr. Jáchym Stolička, junior lawyer – stolicka@plegal.cz
Mgr. Jakub Málek, partner – malek@plegal.cz
25. 10. 2019
[1] DOLOBÁČ, Marcel: Technostres – ochrana duševného zdravia zamestnanca. In Pracovné právo v digitálnej dobe. Prague: Leges, 2017. p. 62.
[2] SZARKOVÁ, Miroslava: Psychosomatické poruchy ako zdroj úrazov v pracovnom procese. In Nové technológie v pracovnom práve a bezpečnosť a ochrana zdravia pri práci. Prague: Leges, 2017. p. 79.
[3] Identically e.g. BARANCOVÁ, Helena: Mobbing a šikanovanie zamestnanca ako forma zneužitia práva. In Societas et Iuresprudentia, Edition II, No. 2, p. 35-66.
[4] Judgement of the Czech Republic Supreme Court file No. 31 Cdo 992/99, from 28. 6. 2000.
[5] Judgement of the Czech Republic Supreme Court file No. 21 Cdo 4394/2014, from 24. 3. 2016.
[6] Judgement of the former Czechoslovak Republic Supreme Court file No. 3 Cz 22/71, from 20. 8. 1971.
[7] ŽIDKOVÁ, Zdeňka: Technostres. In Bezpečnost a hygiena práce, No. 2004, p. 11.
[8] Article L2242-8 of French Labour Code.
[9] ŠVEC, Marek, OLŠOVSKÁ, Andrea: Transformácia pracovného a sociálního prostredia zamestnancov: Práca 4.0 – 24/7? In Pracovné podmienky zamestnancov v období štvrtej priemyselnej revolúcie. Prague: Leges, 2018. p. 75.
[10] Vývojové trendy v pracovním právu ve světle automatizace, digitalizace a robotizace, In is.cuni.cz [online]. 2019 [cit. 2019-09-22]. Available here: https://is.cuni.cz/webapps/zzp/detail/203914/?lang=cs.