Could a Frenchman's claim that his employer gave him so little to do that he suffered from "bore out", and is now demanding €360,000 (£283,000) in compensation, be bought in the UK?
Published on 9th May 2016
In English law there is no general duty to provide work so long as the worker is paid. As long ago as 1940, an English court ruled “provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out”. However, the answer is not always that simple. For instance, a right to work has been implied in other cases where an employee needs to work in order to retain their skills, for example, a boxer needs to box to keep his or her ring craft; actors need to perform to maintain their profile.
What about ‘garden leave’?
Most commonly, when a senior employee hands in their notice, the employer’s reaction is to place them on “garden leave” for the remainder of their notice period. Provided the employment contract permits it, the employee can be sent home to tend their garden, whilst continuing to owe their employer a duty of good faith, which generally means the employee cannot work for anyone else whilst on garden leave. Provided the employer keeps paying them salary and benefits, they can make the employee work out their notice at home.
Whilst being paid for doing nothing may sound attractive, what the French case highlights is that the employee’s real claim surrounds his being bored at work and the personal impact of this on his career and wellbeing. Is there a duty in the UK for employers not to provide boring work? Sadly, the answer is “no”. The truth is that it is a very rare person who finds their work totally stimulating all of the time. Is there any answer to this?
Could a ‘bore-out’ lead to a constructive dismissal claim?
Intentionally side-lining employees and giving them little or no meaningful work to do can be adopted as a strategy to ‘bore-out’ an employee. This can have a serious impact on an employee’s physical and mental well-being, as well as exposing the employer to a constructive dismissal claim for breaching trust and confidence. Hoping to bore an employee into resignation is a dangerous strategy. If the employee is not performing as you wish them to, this should be addressed through a performance management process, and if this is unsuccessful, their employment can be terminated for lack of capability.
Positive steps you can take
Employers are waking up to understand that employees are sometimes underperforming as a result of being under-utilised or unchallenged. Whilst employers cannot continually look to provide stimulating and challenging work, many employers are reporting that giving more consideration to employee wellbeing not only reduces boredom, but has a positive impact on productivity and ultimately, commercial success. For example, giving workers opportunities to contribute by volunteering in their communities can not only be stimulating and rewarding, but can also introduce the worker to a different community; help the worker to appreciate that the skills they have are valuable and are valued; reignite their creative juices; and enhance both the individual’s relationship skills and the employer’s reputation.
I agree with Emma Jacobs who commented in the Weekend FT, “a little bit of workplace ennui can go a long way”. If you can use your time and your skills creatively that can benefit you. That is easier said by those who are at the top of their particular tree and have more workplace autonomy; so the trick for employers is how to help everyone turn moments of boredom into something worthwhile. If you have introduced any innovative schemes in your workplace, then please do let me know.