#LoveWhereYouWork: a closer look at Twitter through the lens of Scottish employment law

Morton Fraser Legal Director Alan Delaney
Alan Delaney
15 February 2023

“Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly competitive world, we will need to be extremely hardcore. This will mean working long hours at high intensity. Only exceptional performance will constitute a passing grade.” – Elon Musk

This recent email to staff from new Twitter owner, Elon Musk, was unsurprisingly, a lesson in how not to treat staff. So much so, Twitter had to clarify to its staff that this wasn’t a spam email and was in fact, the method by which presumably Musk considered he was going to separate the wheat from the chaff. True to his word, beds were quickly installed for staff at Twitter HQ in San Francisco prompting further backlashes.

With the self-described Chief Twit soon to relinquish CEO duties, having lost a self-posted poll of confidence in himself on Twitter, it seems an appropriate time to reflect on his bold approach to employee relations. While the working culture this side of the pond differs from that in the US, what would the employment law implications of these controversial moves have been in the UK?

It should come as no surprise that asking staff to opt into an "extremely hardcore" culture of long working hours at high intensity would be an immediate red flag. It would very likely give rise to claims of unlawful discrimination under the Equality Act 2010 from those who would find it difficult to work long and intense hours.

This might include groups with a protected characteristic, such as those with disabilities, working mums who have childcare responsibilities, or even older workers looking to reduce their hours as they approach retirement.

Musk's email to staff also made the headlines for asking staff to click a link to sign up to the "hardcore" culture otherwise they would be treated as having opted to resign with severance pay. In the UK, such an approach would almost certainly be treated as a dismissal by Twitter (for those effectively "resigned") with unfair dismissal claims likely to be successful for those with 2 years' service or over.

But even for those willing to stay and bed down for the night, there would remain key safeguards. Employers have a duty to take reasonable care for the health and safety of employees under both health and safety legislation and the employment contract. Constructive dismissal claims could also arise from a breach of the implied obligation of mutual trust and confidence arising from employers applying unreasonable pressure on employees.

On long hours specifically, the Working Time Regulations 1998 provide important limits on working time. These include a maximum working time limit of 48 hours per week (normally averaged over 17 weeks) for those who have not signed opt-outs, as well as limits on night work and rights to breaks, as well as daily and weekly rest periods.

It seems very unlikely employers in Scotland would wish to adopt such tactics, given not just the legal risks but the damaging PR likely to arise. In a competitive recruitment market, the question for many employers instead will arguably be: how can we make our organisation a truly great place to work?


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