With smartphones and digital platforms embedded in our day to day lives, more employees are struggling with behavioural addictions. We explore the legal and practical challenges for employers.
While substance-related addictions have long been recognised as an issue that needs to be managed in the workplace, the rise of digital technology has brought new forms of addiction to the fore. According to a recent BUPA survey, more than half of UK workers have struggled with some form of addiction.
Behavioural addictions encompass a range of compulsive behaviours, including excessive use of digital technologies. It's been reported that around 1 in 8 adults in the UK suffer from a form of behavioural addiction. This could include gambling, gaming, internet use, social media, pornography consumption, online shopping or cryptocurrency trading addictions. One consequence of the Covid lockdowns was an increase in these types of digital addictions.
It can be a challenge for employers to address the impact such addictions can have on performance at work, particularly where there is an element of remote working. We take a look at how employers can support and manage employees with behavioural addiction, as well as digital distractions more generally.
How can behavioural addiction impact employees at work?
A particular challenge with behavioural addictions, is the ease of accessing the addictive content at any time. Most workplaces rely on employees having access to the internet (usually on a laptop and smartphone). In addition, many employers allow employees to have their personal devices on them whilst they work. This means that, for example, an employee with a shopping addiction often has the temptation at their fingertips during the workday.
Employees struggling with behavioural addictions can have difficulty focusing on their work, particularly if they are engaging in addictive behaviours during work time. This can result in missed deadlines, lower quality of work and reduced productivity.
Even if the employees are not accessing the material at work, it can still have a significant impact on their performance. If, say, an employee with a gaming addiction is regularly playing late into the night, this can take a toll on general wellbeing. Employees might take more frequent sick days, turn up late or suffer from exhaustion, stress or irritability. Not only can this affect their work output, but it can impact their relationships with colleagues or clients.
Could behavioural addiction amount to a disability?
Some conditions are excluded from protection under the Equality Act, including addictions or a dependency on "alcohol, nicotine or any other substances". These types of impairments cannot amount to a legal disability. Some behavioural conditions are also excluded, such as voyeurism or exhibitionism. But many behavioural addictions are not excluded.
Whether a behavioural addiction amounts to a disability will therefore come down to an assessment of whether the test set out in the Equality Act is met. We take a detailed look at that definition here but let's break it down in the context of an employee with a behavioural addiction:
- Long term effect: The addiction would need to be present for or likely to last at least 12 months. People who are susceptible to addictions often describe managing addiction as a lifelong process. With this in mind, it is possible that an addiction would meet this stage of the test.
- Substantial and adverse effect on ability to carry out normal day-to-day activities: this is likely to be the part of the test which would come under more scrutiny. Day-to-day activities are things people do on a regular basis and could encompass a really broad range of activities. Addiction can impact many areas of normal life in a variety of ways. Compulsive behaviours can often impact an employee's ability to properly care for themselves, as well as other areas of life, such as their ability to socialise or concentrate. The effect must be more than minor or trivial.
So whilst a behavioural addiction is by no means guaranteed to amount to a disability, it is a possibility. However, both substance and behavioural addictions will often coincide with other mental health conditions, such as depression and anxiety. It is perhaps more likely that these conditions could instead meet the threshold for disability. Although there is not a lot of case law yet on behavioural addictions, this point has been highlighted in recent Employment Tribunal decisions:
- Hooper v the Chief Constable of Avon and Somerset Constabulary: although the Tribunal did not explicitly address whether an employee's gambling addiction amounted to a disability, it was considered as part of his wider mental health difficulties. The Tribunal accepted that the claimant's diagnosis of adjustment disorder, with gambling addiction being one of the ways in which it manifested, was a disability.
- Williams v British Telecommunications PLC: a gambling addiction was found as a way of coping with the claimant's anxiety. The anxiety was found to be a disability.
What obligations does an employer have?
There are some key obligations an employer will need to be aware of when managing an employee with a behavioural addiction.
Disability discrimination
Although not everybody with a behavioural addiction will meet the threshold, if the addiction is considered a disability within the Equality Act definition, a number of employer obligations arise. An employer must:
- Not discriminate against any disabled employees: This means an employer needs to take care not to treat an employee less favourably because of their addiction, or addiction-related behaviours or needs.
- Make reasonable adjustments: Employers are under a positive duty to put in place reasonable adjustments for employees who are disabled. What adjustments are required will be fact specific, depending on the individual, their disability and their role. Managers should have an open dialogue with the employee, focusing on how their health conditions are affecting their role and how an adjustment will assist with this. As with any other health conditions, occupational health can assist with advising on what adjustments may be suitable.
Possible adjustments which could support those with behavioural addictions (or underlying conditions) could include regular breaks, more regular catch-ups with management or time off for treatment. In some cases, adjustments could also include modified duties, such as reducing an employee's activities on the internet or setting this to a specific part of the day with the rest of the day performing non-computer-related tasks. However, this may not be practical for the business or role and would need to be considered carefully.
Health and safety
Employers have a number of health and safety duties, such as to provide a safe working environment. Concerns could arise if, for example, an employee is distracted by their phone whilst operating machinery (whether the employee has an addiction or not). Employers will need to take steps to ensure they are providing a safe working environment.
Other obligations
The BUPA survey highlighted that stress, and particularly workplace pressures, are often a major driver behind addiction. In itself, this doesn't create any additional legal obligations, but it could prompt employers to look closely at their workplace culture.
If an employee has a work addiction and is working excessively, an employer will need to be mindful of some additional obligations, such as the limits on working time and break requirements. The Labour government have also committed to introducing a right to disconnect. Although not included in the Employment Rights Bill, a consultation on a new Code of Practice is still expected in the future.
Obligations to other employees
Employers should also consider what obligations they owe to their other staff, which may depend on the nature of the addiction. This is particularly pertinent when considering an addiction others may find offensive. For example, an addiction to watching pornography, could give rise to a harassment claim if an employee discusses their porn habit with colleagues or views porn in front of others. Employers now also have a preventative duty to take reasonable steps to prevent sexual harassment in the workplace, focusing on workplace culture.
There could also be some wider employee relations concerns which need addressing. Dips in performance can often impact an employee's colleagues but there are some other issues peculiar to behavioural addiction. If, say, an employee with anxiety and a social media addiction requested additional breaks to help manage their conditions, this could be perceived as unfair by colleagues.
How can we address work concerns?
Broadly, there are two formal processes that an employer could consider depending on the concerns:
- Conduct: There may be times when an employer could instigate disciplinary proceedings for misconduct. This could be if, for example, an employee with a gambling addiction, gambled using company money. In these circumstances, dismissal could be a reasonable sanction. Although, in the usual way, as part of determining any outcome the employer should consider all possible outcomes, including those short of dismissal.
- Performance: Continued under-performance by an employee does not need to be tolerated by an employer, even if there is an underlying disability (provided all reasonable adjustments have been implemented). Ultimately, an employee must be able to perform the role they are recruited to do. If the employee is likely to be considered disabled, reasonable adjustments should be considered throughout any performance improvement process, including reviewing the effectiveness of the adjustments in place and whether other adjustments are needed.
It is often once formal processes are instigated that an employee will proactively notify their employer of any addiction or related health conditions. If that is the case, the employer should at that stage consider how any health conditions have affected them and the impact on their role. Employers may want to consider medical advice at this juncture.
Should these processes result in dismissal, in addition to having a fair reason for dismissal, an employer will also need to follow a fair process. If an employee has over two years' service, then they could allege unfair dismissal – although unfair dismissal is set to become a day one right under the Employment Rights Bill.
Top tips
Here are our top tips for employers managing behavioural addictions and digital distractions in the workplace:
- Addiction could be a disability: Although the line between high usage and addiction will sometimes be unclear, employers need to remember that not all addictions are excluded from protection. Many behavioural addictions won't amount to a disability, but there could still be underlying conditions that do.
- Don't rely on disclosure: An employer isn't off the hook if an addiction or other health condition has not been disclosed to them. The disability discrimination duties would still kick in if it is considered the employer ought to be aware of the disability. Employees may be reluctant to disclose any addiction to their employer, particularly as they will often be undiagnosed. However, there may be other signs of addiction or poor mental health which the employer could reasonably be expected to have picked up on, including changes in behaviour at work.
- Training: Managers should be trained to recognise the potential signs of all addictions (substance or behavioural) and how to navigate such situations. Training can also help address the stigma attached to addiction.
- Stress risk assessments: Where an employee's health condition (including addiction) is caused by work factors or work stress, consider performing stress risk assessments to determine potential triggers and develop a plan for such scenarios.
- Digital detox: Supporting all employees with digital distractions at work will generally help boost productivity. This could include providing access to lockable phone boxes, having "phone free zones" or designating "focus hours" designed to prioritise deep work time. Additional tailored support may need to be provided to individuals struggling with addiction, particularly where they have other mental health conditions.
- Regular catch ups: When employees work from home, effective monitoring and support mechanisms can be more difficult to implement. Many employers will want to create a relationship of trust with their staff, whilst ensuring productivity remains high. Employers should ensure that employees are having regular catch ups with managers about both their work output, but also their wellbeing.
- Policies and procedures: A crucial way of managing digital distraction for all staff is to ensure that your policies and procedures are robust. Whilst a phone free desk policy is unlikely to be popular (particularly for those with caring responsibilities), other strategies could be encouraged to minimise phone use (such as encouraging staff to provide their work number to school or care homes). IT and communications policies should set clear remits on what activities are permitted at work and how both work and personal devices can be used.
- Investing in your employee's mental health: safeguarding employees' mental health and wellbeing generally remains high on many corporate agendas. Making this a business priority can benefit all staff, including those with behavioural addictions. Normalising conversations around mental health can encourage employees to seek support at an early stage, before work is really impacted. Any wellbeing support offered (such as Employer Assistance Programmes, mindfulness apps and mental health days) should be signposted regularly to employees known to be struggling with addiction.
BUPA's study results can be accessed here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
