April 23, 2018

How to help a "burned out" employee: legal aspects

Part of ongoing series of articles from ILF experts on dealing with "difficult" employees. This time the authors, sharing comments on important legal aspects, help figure out what to do when your employee is "burned out" for some reason.

CEO’s perspective

Kateryna Zaslavska, director of Kyiv office ILF

There are employees that could do no wrong, like our HR manager George. He miraculously finds the best candidates in the shortest time possible, as if he grows them in his underground incubator. He organizers unforgettable corporate parties that the team remembers for years. His encouraging smile cheers everyone up. Everyone loves him – from CEO to cleaning lady. HR is his vocation and passion in life, and light in his office is on until late into the evening.

However, there comes a day when George takes his time to perform a new task. He stares indifferently into the wall. When asked if he’s OK, he says he’s just tired. Over time, the situation gets worse - George snaps at people and sometimes even gets into fights. He does the job poorly or doesn’t do it at all, and does not consider it necessary to explain himself. "Everything’s fine, I’m just tired," he says, looking like a martyr. What is this? Sabotage, whim, bad luck? Worse. Most likely, George is "burned out".

George is not alone in this. If the reader of this article has not encountered the "burnout" syndrome, then he or she is among the 30% of the lucky ones. The remaining 70% of Ukrainians polled last year said that they had faced this scourge at least once in their lives. One of the main reasons for this is uninteresting work and lack of growth. Respondents also complain about excessive workload, lack of balance between their jobs and personal life, and low wages. All this leads to one good conclusion: the employer can influence 90% of the reasons for emotional "burnout". How?

Vacation

Often breaking away from the routine for a couple of weeks helps regain strength to work and live on. The question is, how long will it last? After all, "burnout" is often not just a consequence of physical fatigue, but rather a sign that a person has outgrown his position. He’s lost motivation and has nowhere to grow. This "ceiling" is reached about every 1.5-2.5 years. During this critical period, it is recommended to closely monitor employees in order to make timely changes to their duties and position, since simple vacation will not suffice here.

Communication

Burnout is a disease that is easier to prevent than cure. Overpowering fatigue, fast pace of work, lack of clear goals and results can be the harbingers of burnout. Regular contact with employees works wonders, allowing you to catch the first signals of discontent and a person’s transformation into a wreck.

Flexible work schedule

Work schedule from 9 to 18 is becoming a thing of the past. The 21st century is a time of freedom and work for pleasure, since there is so much interesting stuff around. The more you try to lock people in the office, the more some of them will suffer. It can be a great motivation if you give people an opportunity to come to work a bit later so they can do sports in the morning, or have a "creative day" out of office once a week.

Gamification

If the level of contentment in the team has decreased, try some games. Convert routine and extra tasks into points, make it competitive, add emotions to the job. Sounds weird? Do adults not play games? Google, Facebook and Amazon believe they do. The result is obvious.

Changes

Nothing makes life fresh like moving to a new department or another office, city or country. Let employees change their situation, radically and for good. Change of environment and occupation will help postpone burnout until the next crisis.

Sabbatical

It is a trend in the modern western culture of labor. Sabbatical is a leave, lasting from three months to a year, during which the employee retains the place at the company and sometimes even salary. After the sabbatical, the employee either leaves for good or returns to your company with new ideas and energy. The second option is well worth the risk.

The main danger of burnout is not just in the fact that the employee suddenly becomes "difficult", but because that person could leave the company unexpectedly. This decision is either preceded by months of slow agony and inefficient work, or it is made quickly and on the spot. It is also usually final.

How to build a system that does not lead to "burnout"? How to organize flexible work schedule at the company? Are sabbaticals allowed by Ukrainian law? And most importantly, does the employer have the right to dismiss a person on the grounds of professional burnout?

Lawyer’s perspective

Sergey Silchenko, partner on labor and tax law,ILF

Burnout at work cannot be cured by legislation. However, the law requires employers to create safe and harmless working conditions. Moreover, they must take measures to facilitate and improve working conditions by introducing advanced technologies, scientific achievements, means of mechanization and automation of production, considerations of ergonomics, positive practices in protection of labor protection, etc. (Article 158 of the Labor Code). What are the opportunities offered by labor legislation for the prevention of burnout?

Vacation and sabbatical

Sabbatical as special long-term paid vacation is not provided for by law for employees. There is so called "creative leave", which is granted to researchers to let them finish their thesis or monograph. Everyone else can be granted unpaid leave for a period of no more than 15 calendar days per year. Nevertheless, it’s not as bad as it looks.

Employers may, on the basis of a collective agreement or an agreement between the parties to an employment contract, establish new types of vacation not provided for by law (part 2, Article 4 of the Law On Vacation). The employer’s right to grant employees additional labor and socio-economic benefits and guarantees is set forth in Article 9-1 of the Labor Code. The only condition here is that it can be done at the expense of net profit, as stipulated in Article 23 of the Law On Vacation. The days of annual leave, which the employee for some reason did not use, can be attached to the next vacation. The law prohibits not granting full annual leave for two consecutive years. It is an important point that unused vacation days accumulate, not disappear.

Since unpaid leave does not entail financial compensation for the employee, regulatory authorities consider its extension a violation of labor legislation.

Flexible work schedule

Flexible working hours are entirely legal in Ukraine. Back in 2006, the Ministry of Labor and Social Policy of Ukraine, by Order No. 359, approved the Methodological Recommendations for Establishing Flexible Working Hours. Each company can independently determine the duration and regime of work in a collective agreement. Flexible work schedule is a form of work organization that allows certain categories of employees set their own time for beginning and ending their work. This mode of work can be established individually with specific employees, or it can cover the whole staff and be specified in internal labor regulations or the collective agreement. It is important to ensure reliable recording of working hours and prevent unreasonable increase in labor requirements.

Working from home

Employees that feel uncomfortable in the office can be offered to work from home, especially since the law does not care whether the employee works remotely or at the office. Working from home can be discussed at the time of hiring or later. Given the remoteness of the workplace and difficulties with supervision, we recommend signing a written labor contract or agreement on working from home, putting there all terms of cooperation, including organization of work, assignment of tasks, provision of supplies, and delivery of work and products.

Labor law does not directly regulate remote work. Only Article 179 of the Labor Code contains a provision that grants the right to work part-time or at home to persons on childcare leave until the child reaches the age of three (or six, if required for medical reasons). For these purposes, it is possible to use the norms regulating home-based work: Regulation of USSR State Labor Committee of 29 September 1981 No. 275/17-99 On the Conditions of Persons Working from Home, the Home Work Convention No. 177 of the International Labour Organization of 1996, and ILO Home Work Recommendation No. 184 of 1996.

Gamification

All new things are just forgotten old ones. Who says that gamification is a product of progressive Western companies only? In Soviet times, children played a game called “zarnitsa” in schools, and adults had socialist competitions at factories. They had their rewards, cash prizes and gifts. Therefore, introduction of gaming practices as a means of managing and motivating employees can be packaged into the procedure for changing essential working conditions, provided for by part 3, Article 32 of the Labor Code. The rules should be simple, related to the production process and carefully spelled out. By the way, since the employer encourages winners, we should not forget to specify these incentives in internal regulations.

If you intend to introduce game elements on a voluntary basis, it is sufficient to write out the conditions in a local document and have it approved by the executive officer.

Job transfer

When transferring employees, it is important to remember that another job or move to another city can be done only with the consent of the employee.

If it is enough to change the microcollective to prevent burnout, it is sufficient to give the employee a similar position in another department, without changing working conditions. Such transfer does not require the employee’s consent, but it is better to discuss this with him or her first, for the sake of preventing burnout.

Dismissal

Sometimes dismissal is the only option if the employee refuses all attempts at constructive dialogue offered by the employer. In this case, it is best to terminate the employment contract on mutual consent of the parties, since it allows you to keep the employee’s loyalty and leave a door open for the future.

When it is impossible to find a peaceful solution, there remain options provided by the Labor Code for dismissal at the initiative of the employer. If failure to perform duties by an employee is not related to his or her guilty conduct, you can use clause 2, Article 40 of the Labor Code (incompatibility with the position due to lack of qualification). It is important not to forget to offer the employee a transfer to another position, if there is a vacancy that he can fill. On the other hand, if the employee systematically violates labor discipline, his career can be ended with dismissal for systematic violation of labor discipline (clause 3, Article 40 of the Labor Code).

For certain categories of employees who are company officers (chairman and members of the management board, supervisory board, audit committee, etc.), you can use dismissal under clause 5, Article 41 of the Labor Code in connection with the termination of their powers. It is important to observe all formalities specified by the law and the company's charter. Such dismissal entails severance pay for the employee in the amount of no less than six average monthly salaries.