Introduction
The pandemic has served as a clarion call to address the mental health concerns of the society, in general and in the workplace, specifically. With a series of lockdowns and curfews in the last two years, most employers were forced to introduce an unprecedented arrangement for workers to work from home. There were significant difficulties and challenges for employers as well as employees to adjust to the change, especially in terms of tech and communication support, logistics and human resource management, and maintaining the divide between work and personal lives. One harsh outcome of the pandemic is that it has heightened employees’ stress and, in some cases, caused a burn out. The increased flexibility that working from home brought also resulted in work life balance being shown the door. Flexibility became an unwitting guise for blurring of and increase in actual working hours.
The right to disconnect is picking up pace globally
Recently, legislation passed by Portugal’s Socialist Party prohibiting employers from contacting employees after working hours has made much news.
1 A revolutionary and bold move by Portugal to provide for the right of disconnect, as it is coined, serves to set boundaries between the employers and the employees, especially those working remotely. The newly introduced law provides for employers to face fines if attempts are made to contact employees outside of working hours.
Germany has implemented a similar ban on employers in 2013
2 and in 2016, following a court’s decision that an employee’s failure to answer his work phone after working hours was not a justifiable reason to dismiss him; France decided to codify the prohibition for employees to be available for workplace communication after working hours.
3 The recent addition to the list is Ontario, that requires employers with 25 or more employees to form a written policy addressing employees’ ability to disconnect from work.
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The wave to provide for a healthier working environment has also swept several other countries such as Spain (companies are obliged to form a policy, to be negotiated with employee representatives which includes measures to allow the employees to “digitally disconnect”),
5 Italy (regulations passed in May 2020 provide for the right of employees working remotely to disconnect from the IT tools used to carry out their work),
6 India and more.
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The right to disconnect in Malaysia – or the lack thereof
The right to disconnect, however, is a long way from home. There is currently no legislation prohibiting or discouraging employees from being contacted outside of working hours. Neither the recent proposed amendments to the
Employment Act 1950 (“
EA 1950”) nor the
Occupational Safety and Health Act (“
OSHA 1994”) deal with this issue. This is no surprise as the jurisprudential development of labour and employment laws has largely been spurred by judicial pronouncements and less by legislative interventions.
On the ground reality, the introduction of laws granting employees the right to disconnect will likely not go down well with businesses operating in the local environment. Many arguments may be taken against it including that the globalised nature of a growing number of businesses requires around the clock involvement of its people. The Malaysian economy is also expected to be on the path to recovery in 2021, with GDP growth projected at 4.4% according to The Economist Intelligence Unit forecast.
8 Arguments may therefore be taken that the right to disconnect would hamper Malaysia’s rankings, economic recovery and growth, all of which are at best, superficial or myopic arguments.
Ultimately, the underlying premise of the right to disconnect is the mental health concerns of employees. A recent survey conducted showed that 92% of Malaysians are experiencing some level of stress about losing their jobs,
9 51% of the 17,595 employees polled suffer from work-related stress, and 53% get less than seven hours of sleep each night.
10 Further, according to a survey conducted in 2020, Malaysia emerged highest in its employees experiencing a high level of anxiety, which also has a greater proportion of people working from home during the Covid-19 pandemic compared with the global average. The poll was conducted in 28 countries including Japan, India, Britain and United States.
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63% of Malaysian workers, to a large or some extent, are reported to find it difficult to achieve work-life balance.
12 These statistics paint a vivid if not stark picture of the wellbeing of employees in Malaysia which can only lead to the conclusion that some form of intervention is timely and perhaps even overdue. For the purposes of this article, we will limit our focus to the right to disconnect.
The implementation of the right to disconnect will not and cannot be a straightforward one. There should be certain derogations and exemptions to it, depending on the industry and nature of business. In France, employees and employers are allowed to determine the arrangements that best suits their interests and line of work; and mandates annual negotiations between employers and employees to establish the limits between working and personal hours.
13 Such approach gives employers and employees the liberty to choose how best to manage the issue, thereby ensuring the business interests are balanced with the wellbeing of employees. The million-dollar question in our local context is whether our current laws support the implementation of such arrangements.
Legislation addressing mental health concerns of employees
Section 15 of
OSHA 1994 prescribes that employers owe a duty to ensure, so far as is practicable, the safety, health, and welfare at work of all their employees. Employers stand to be fined up to RM50,000 and/or imprisonment of up to two years for failure to do so.
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Whilst
OSHA 1994 may be limited in its scope to specific prescribed industries, upcoming amendments indicate a welcomed change to bring all industries within its ambit.
15 The Guidelines on OSHA 1994, defines “health” as “
a state of complete physical, mental and social well-being and not merely the absence of disease”.
16 The Guidelines also further clarifies that “
working environment” may include “
the workplace itself; all plants at the workplace; the physical environment and the psychological environment”.
17 It further defines “stress” as when the demands on a worker exceed the capacity to cope with their duties and imposes an obligation on employers to identify stressful situations in the office and to implement safeguards to minimise the risk.
18 It stops there but it is enough. The
OSHA 1994 and the guidelines or regulations under it may not be prescriptive in addressing mental health but it imposes a legal obligation on the employer to safeguard, amongst others, mental health. An objective assessment of the language used supports that conclusion.
It is therefore possible and open to employees to request employers to better regulate working hours, set defined boundaries and create practices that will respect work life balance; especially if their argument is centred on the need to preserve health. It will also be interesting to see if multinational corporations headquartered in states where there are laws protecting the right to disconnect will as a matter of practice implement similar rules locally.
The proposed amendments to the
EA 1950 give us a glimpse of a move for better work-life balance namely the provision allowing arrangements for flexible working hours to be made upon application of the employee although it also allows the employer to refuse.
19 The proposed amendments also seek to reduce the working hours per week for employees covered under the
EA 1950 from 48 to 45 hours, another nod towards work life balance.
20 Though the EA is limited in its application to specific categories of employees, an argument that may be taken by all employees is that health and well-being should not be limited to only certain categories and as such all employers should consider seriously efforts to promote mental health.
In the quest to forge ahead as a globalised nation and rebrand ourselves as a high-income economy, we are at crossroads. The current strongly held view that an employee has to yield maximum output in terms of hours may have to give way to other competing interests if we are to create a sustainable workforce. Like many other legal advances in the employment sphere, the protection of work life balance and mental health may find its rightful place in our law books as a result of dispute resolution; and as with all else, the employers who are ahead of the curve will have less exposure to worry about.
Article by Selvamalar Alagaratnam (Partner) and Sandhya Saravanan (Associate) of the Employment Practice of Skrine.