- feelings of energy depletion or exhaustion;
- increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and
- reduced professional efficacy.”
According to a recent article in City AM, the Gallup State of the Global Workplace 2025 Report* has reviewed the survey findings and concluded that British workers are among the “saddest, loneliest and most disengaged in Europe”. This is not just a UK issue, however, as one of the key data points in the survey is the finding that “Globally, employee engagement fell two percent in 2024, marking only the second time the metric has declined in the last 12 years, the other time being 2020” (the first year of the global Covid 19 pandemic).
What are the risks?
In the UK, relevant law that governs working arrangements and safety at work is found in the Health & Safety at Work Act 1974, the Management of Health & Safety at Work Regulations 1999 and the Working Time Regulations 1998 (WTR).
Health & Safety at Work Act and Associated Regulations
Traditionally, the Act has been seen to lack teeth and not to be a major concern to employers, particularly in office-based work where there is no dangerous machinery or inherently dangerous tasks involved. However, during Covid, some successful actions were brought under this legislation, highlighting its relevance even in less hazardous environments.
It is worth noting the key concepts which continue to apply to all employers. For instance, all employers are under the basic duty to ensure the health and safety of all employees (including a manager’s direct and indirect reports) “so far as reasonably practicable”. In order to ensure compliance with the duty, the key is to have an effective system to assess risks, keep those assessments under adequate review and implement changes as needed swiftly and effectively. In many companies, this responsibility is delegated to a committee or a single director as one of several responsibilities in their portfolio, but this will not be enough to discharge a duty. If employees, (particularly less experienced ones) are under-supervised, perhaps because they are working from home a lot, or are raising issues of fear or confusion of role, lack of control, worries about the pressure to use AI effectively or citing panic attacks, these are all red flags that could lead to breach of duties under this legislation when their health is affected.
In the most severe cases, a director or manager can be held criminally responsible under section 37 of the Act where the company itself is found to have committed a health and safety offence in circumstances where the offence happened with the consent or connivance of the director or manager or was attributable in any way to their neglect. It is important to note that in this context “consent” means knowledge and awareness of the circumstances and the risks (such as unsupervised long hours or chaotic or non-existent management) which causes the health and safety failure, and “connivance” means “knowing but not doing anything about the risks.”
The WTR
The WTR are also relevant. An often-overlooked fact is that a failure to take “reasonable steps” to comply with limits on working time (or the record keeping requirements) is a criminal offence for an employer (under Reg 29(1)). A convicted employer can be fined (unlimited) and the local authority or the Health and Safety Executive (HSE) can issue prohibition and improvement notices under their Schedule 3 powers. Individual directors and managers can be personally liable for non-compliance with such a notice if they are responsible for ensuring compliance within their organisation.
In addition, although an employee cannot bring a tribunal action against an employer for forcing them to work over the 48 hour week (or failing to prevent such working), if an employee complains about their excessive hours and is then penalised in any way (perhaps by not being considered for promotion, or not receiving a bonus), they can bring a detriment claim against the employer (under Reg 4). A detriment claim can also be brought where a worker refuses to forego approved annual leave. If an employee resigns under the pressure of being required to work excessive hours in breach of their contract or is dismissed for refusing to give up a right conferred on them under the WTR, they can bring an automatic unfair dismissal claim in the tribunal. Such claims have historically been associated with lower paid workers in sectors like care, but could apply to senior executives, who have not agreed to sign an opt out or to agree a clause in their contract that states they can self-determine their hours. Such clauses have been considered standard in the past but with the changing work environment, we predict that executives may push back on their inclusion in the future, increasing the risks on employers.
There is also a risk that employees may commence a prolonged period of sick leave because of burnout/stress/anxiety. If so, this will increase the pressure on remaining managers and their reports, especially where it is not possible to recruit or co-opt additional support in the short term and the work pressure remains constant and does not lessen. Ultimately, it will also be necessary to manage the absence and at the senior level this can lead to negotiated exits and payouts, (insured or self-insured) with a consequent loss of management time dealing with such issues and reduction in engagement from survivors.
Flexible Working and Informal Requests
The Employment Rights Bill 2025 as amended and other Government initiatives do not directly address burnout. However, the right to request flexible working as a day 1 right has been in operation since 6 April 2024.
There are further changes proposed by this Government, which include introducing a test of reasonableness where an employer refuses a statutory application on one of the prescribed grounds and a requirement to state the ground or grounds on which the application has been refused “with supporting reasons”. If an employee is penalised for making or proposing to make a request, they can bring a detriment claim against the employer. On the de-risking and positive side, if such requests can be accommodated, the revised working arrangements may go a long way to preventing burnout and creating a positive culture.
Informal requests should also be treated very seriously as part of a strategy to reduce burnout and other health issues and promote a positive culture. Complying with reasonable requests may also assist in the reduction of potential discrimination claims, especially, from workers in the organisation with caring responsibilities for children and others.
Solutions
The HSE has published Management Standards that cover six key areas which, if not properly managed, are associated with poor health, lower productivity and increased accident and sickness absence rates. The Management Standards are:
- Demands: This includes issues such as workload, work patterns and the work environment.
- Control: How much input an individual has in the way that they do their work.
- Support: This includes the encouragement, sponsorship and resources provided by the organisation, line management and colleagues.
- Relationships: This includes promoting positive working to avoid conflict and dealing with unacceptable behaviour, such as bullying.
- Role: Whether an individual understands their role within the organisation.
- Change: How change is managed and communicated within the organisation.
Failure to deal effectively with these Management Standards is likely to lead to burnout. Here are some possible solutions which we see employers considering:
- 4 Day Working Week: The Autonomy, an independent research organisation, in its report “Making it stick” in February 2024 reported burnout levels unchanged, although in the initial pilot, levels of burn out reduced.
- Unlimited (paid) leave policies: These are still not adopted in many companies and there are pros and cons. In their article on this topic, the Flexa platform states “In fact, a bigger risk is perhaps a counterintuitive one: the risk that employees will actually end up taking less time off than before, leading to poorer mental health, burnout and even attrition from the company”.
- Sabbaticals: Some larger companies have well-developed policies. In a smaller business, with a lean structure, these are more difficult to develop but can be a valuable tool and a competitive advantage as an when recruiting new managers.
- Promoting mental health: Mental health first aid is becoming recognised as an important part of the employee package and many companies offer training as mental health first aiders. The social enterprise, MHFA England, is an organisation that provides workplace adapted training and resources and alongside employee assistance programmes is a key part of what senior executives can campaign for and support in their organisations so that they can use these resources and signpost team members to them.
- “Take one or take two” (weeks): Unpaid leave for any reason. Since there is no legal right to unpaid leave, this falls into the realm of employer policy. Whereas most employers will take an ad hoc, merits-based approach to such requests. Creating a legal right to unpaid leave for any reason, might be seen as a useful tool (especially for senior people who are more likely to be able to afford this) and could allow senior execs to take a break from the continuous pressure that leads to burnout and therefore help with retention and avoid grievances and litigation.
- AI: The introduction of AI has potential to relieve increased workloads, but only for the patient ones. While some workers express concern that AI is creating more work for them — whether through a need to learn and upskill or navigating new tools at work — there is still hope these tools can alleviate workloads. A survey from GoTo and OnePoll found that IT workers who are overburdened do see the potential for AI as a tool for support, with 92% saying they consider AI beneficial to their work, and 94% saying they would delegate simple tasks to AI. Additionally, 73% said they would be willing to delegate more complex tasks to AI as well, freeing up nearly two hours of work per day. It seems IT workers see the potential for AI in the workplace, once they have gained the proper skills and expertise to employ the technology. However, at the senior level, the impact may be the opposite. In their article “The Executive Ejection Seat”, Korn Ferry note that in a recent survey, 70% of chief executives believe that someone at their level will be ousted in the next 12 months, for failure to deliver on AI strategy. Paul Fogel, from their Professional Search Software practice has been quoted as saying “Problem is, the technology, despite its high cost, isn’t likely to provide financial returns in one-five year horizons” and believes that several CEOs are in trouble as a result.
- Focus on culture: Al of the above and the overall culture, particularly around transparency and inclusiveness and acting promptly and effectively to stamp out poor behaviours such as chaotic stressful leadership and bullying, can play a part in reducing incidences of burnout and reduce potential claims.
- Management training: Jeremie Brechelsen, managing partner of Gallup Emea, has said that “lack of managerial training in the UK was a particular issue, with poorly trained managers having an adverse impact on the whole workforce”. Certainly, in many businesses, management skills training is not prioritised – if the employee has been promoted on the basis of their own excellent work, that does not necessarily mean they will be as good a manager and they are a “doer” and if the culture does not value and reward managers being generous with their time the problem is exacerbated. Often this results in a senior executive being exited as a new manager with “better” skills is brought in from outside. This can be expensive and wasteful, as they take time to get to know the business and the internal drivers before they can be effective.
- Right to disconnect: The Labour Government initially intended to legislate for workers to have a “Right to disconnect” as this right applies elsewhere in the world, such as in Spain, Australia and in Mexico (for Teleworkers) but this is no longer part of UK legislative policy. However, this does not stop employers making this an internal policy and enforcing it so that employees have the boundaries that many workers (especially in younger generations) expect to be the norm, but which often is not.
Conclusion
Burnout is a serious risk, which can lead to severe consequences if not addressed. For employees, burnout can lead to disability and serious personal injury (psychiatric damage). For employers, burnout may result in disruption to their workforce (sick leaves and resignations) and high value claims with potential reputational damage (i.e. toxic workplace).
During employment, employers have a duty to assess risks (including the risk of burnout) and take reasonable steps to eliminate them. It is always best to mitigate the risk rather than manage the consequences. We can help to assess your legal risks and advise on the implementation of relevant strategies, policies and new contractual rights to reduce these risks and improve your workplace culture.
* The State of the Global Workplace 2025 Report can be downloaded here (subscription required)
If you are an employer and would like to discuss burnout and the associated risks, or if you have any questions arising from this article, please contact Partner Merrill April or Senior Associate Yulia Fedorenko, both of whom specialise in employment and partnership law.
Merrill and Yulia are both participating in the panel discussion Who Would Lead? Tackling Burnout, Risk and the Reluctance of Future Leaders in an Era of Disposable Leadership at the forthcoming 6th Annual IFSEA Conference on Risk, Reputation & Ethical Leadership Issues for Executives, Founders & their Advisers, taking place on 17 June 2025 in London. Find out more about the conference below and register your place here.
