[Vadita is a student at National University of Juridical Sciences.]
Post-COVID-19-pandemic, we are in the midst of what is coined as the Great Resignation - people are rethinking the place of work in their lives and are unhappy with their jobs. Chief Economist at the World Economic Forum describes the current framework for employees as a “game of musical chairs”, where workers are perpetually agitated but the number of metaphorical chairs, i.e., alternate jobs that they can take up are rapidly decreasing. What results is unhappy workers who are trapped in their jobs, coerced into staying there due to the uncertainty of the job market. The response is described as "quiet quitting" - when employees stop investing into tasks beyond what is contractually assigned to them and reduce the time and energy invested in work.
Though semantically coined recently, the idea of quiet quitting is not new. Its legal dimension however, is nearly completely unexplored. This was until New York law firm Napoli Shkolnik sued their own employee, alleging that she misused the remote work environment to "quiet quit" her job. While the case is still ongoing, there is merit to looking into whether employees can legally disengage from their jobs and concomitantly, whether employers have a right to expect workers to go above and beyond.
The article attempts to lay down parameters for rule-making when it comes to quiet quitting. First, there necessarily needs to be a distinction between the idea of ‘work to rule’ which is considered a breach of contract and quiet quitting. The two will be distinguished both in terms of object and outcome, warranting a much lower level of legal scrutiny on quiet quitting than on work to rule. From the Indian perspective, the article will also argue for a distinction between quiet quitting and go slow which is a recognised form of misconduct in Indian labour law. Second, from a policy perspective, the article will criticize the pushback against quiet quitting which often manifests as incredibly selective hiring policies in companies such as Google.
The article is premised on the idea that both legally and otherwise, employees cannot be expected to adhere to the capitalistic notion that they are obligated to do more than what is contractually stipulated in their jobs.
Creating Parameters for Rulemaking
The fine line between quiet quitting and work to rule
With the global and the Indian jurisprudence on quiet quitting being severely underdeveloped, reference to similar phenomenon can help in creating parameters for rule-making. One such phenomenon is work to rule where workers strictly adhere to the letter of the contract, usually as a form of protest considered less disruptive than a full-scale strike.
Case laws from England which deal with work to rule help in bringing out the difference between work to rule and quiet quitting.
Secretary of State for Employment v. ASLEF[1] (ASLEF) dealt with a situation of work to rule where 3 trade unions representing railway employees were agitating for increase in pay and as a form of protest, specifically instructed workers to “work strictly to rule” by banning overtime, rest day and Sunday work. The trade unions also instructed the workers to work strictly for eight hours, as was mentioned in their instruction manual and not for additional hours even if they were compulsorily rostered to do so.
The Court of Appeal unequivocally agreed that a ban on Sunday working and rest day working was not in breach of contract since the same was strictly voluntary. This was drawn from the larger dictum that “a man is not bound positively to do more for his employer than his contract requires.” The problem arose when the court inquired into the object of the work to rule and the instruction to strictly adhere to the instruction manual. In light of explicit instructions given to the members, particularly the signalmen that they should work for more than eight hours a day until the last train had passed, violation of the same was held to “clearly involve breach of contract.”
Since the notice by the trade union was a response to the lack of rise in wages, the court aptly noted that the ultimate goal was to “produce at least a serious reduction in the efficiency of the railway system.” It was this implicit intention to “render the railways in large part unworkable” that was held by the court to be a fundamental violation of the obligation on every employee to do a fair day’s work.
Particularly relevant in principle is the recent case of Ministry of Justice v. Prison Officers Association (Prison Officers Association).[2] Here, the Prison Officers Association was a trade union representing inter alia prison officers. Due to discontent regarding pay and working conditions, the Prison Association directed all officers to stop doing what were described as “voluntary tasks”. These tasks which the officers were not expected to perform in the absence of lawful instruction, comprised tasks such as first aid of the prisoners and mental health assessments. The question before the court was whether the employees were under an implied contractual obligation to fulfill these voluntary acts. The court held that there is a legal distinction in labour law between unreasonable performance of obligation within contractual scope and non-performance, unreasonable or otherwise, of obligations outside contractual scope.[3] While the employee is under an implied obligation to adhere to the former, the same rule doesn't apply to acts under the latter. Ultimately, the voluntary acts were held to fall outside the prison officer’s contract of employment, creating no obligation to perform, irrespective of the intention behind the same.
In the case of Armstrong Whitworth Rolls Ltd. v. Mustard,[4] it was also held that what was essential to make the railways workable was not the test of contractual obligation. In the event of a contractual term which puts the burden on the employee to promote the interests of the enterprise to make it workable, there was also a parallel obligation on the employer to take care of the employee in a commensurate manner. Thus, while there is an obligation on the employee to adhere to contractual obligations, ensuring that this adherence leads to an increase in production or even workability is not relevant.
While cases in India do not formally regulate work to rule yet, a recommendation in the 39th Session of the Indian Labour Conference proposed to recognise work to rule and go slow as forms of misconduct under the Industrial Disputes Act 1947 (ID Act).
In ASLEF case, Lord Denning makes a helpful analogy which can help in understanding the difference between work to rule and quiet quitting. A man employs a driver to drive him somewhere and since there’s sufficient time, he asks him to not rush. While driving slowly would be acceptable, willfully driving at a snail’s pace to ensure that the person reaches late would be a “breach of contract beyond all doubt.” Quiet quitting falls under this narrow bracket of driving slow as the employer directed you to. In terms of a positive contribution on what the law for quiet quitting could entail, the threshold for an employee’s action to be permissible under law can be derived from the individual opinion of Judge Buckley in ALSEF case. In contracts where there is an implied term or which requires the continued existence of a particular state of affairs, the willful act of one party in bringing that state of affairs to an end or defeating the commercial intention of the parties entering into the contract is impermissible.
Thus, there is clear precedent to show that quiet quitting does not amount to misconduct and is permissible. This is of course unless a mala fide intention on part of the employee to disrupt the business of the employer can be displayed.
Can quiet quitting be equated to go slow?
A phenomenon comparable to quiet quitting which is well established in Indian labour law jurisprudence is that of go slow. While not considered a strike, undertaking go slow amounts to an ‘unfair labour practice’ under Part II of Schedule V of the ID Act. It is pertinent to explore whether the act of quiet quitting is comparable to go slow which has established legal ramifications in India.
As described in Bharat Sugar Mills v. Jai Singh (Bharat Sugar Mills), go slow is a “deliberate delaying of production by workmen” who pretend to be engaged in work and thus claim to be entitled to full wages. Further, Bharat Sugar Mills characterizes go slow to be “much more harmful that total cessation of work by strike” since while in the latter machinery and other equipment can be fully turned off, during go slow, machinery is deliberately kept running at very slow speeds which can lead to damage of machinery parts.
Admittedly, go slow and quiet quitting both share the quality of, as described in Ziakh v. Firestone Tyre and Rubber Company Limited (Firestone Tyre), being willful and deliberate acts. The difference between the two and consequently the crux of why the article argues that quiet quitting cannot amount to go slow lies in the rationale given by courts on why go slow qualifies as misconduct. For instance, Firestone Tyre concerned allegations of go slow in a tyre factory where the work was piece-rated as opposed to time-rated. The court held that even in cases of piece-rated employment where there was no minimum contribution specified by the employer, the employer is entitled to the employee’s “minimum…ability… and skill.” In cases where a minimum has been prescribed under a contract of service, an employee would be guilty of misconduct for not adhering to that minimum. Quiet quitting meets this expectation of adhering to the minimum contractual requirement as laid down in Indian cases of go slow. Even if we were to analyze the Management of Bata India Limited v. Workmen of Bata India Limited and Others case before Karnataka High Court which was upheld by the Supreme Court in 2023, it was the reduction in production of shoes by 50% below the minimum targeted production of 600 shoes per shift that the act of the workmen was construed as go slow and subsequently, as misconduct. Thus, typical tactics of go slow such as intentionally taking longer time to complete tasks and reducing efficiency only warrant punishment in the Indian scenario when there is a discernible fall in production to the point of not meeting contractual obligations.
As discussed in the previous part, quiet quitting entails meeting contractual obligations but not going above and beyond the letter of contract. For this reason, the article agues that quiet quitting cannot be equated with go slow either.
A critique of quiet hiring: Removing the expectation on employees to go above and beyond
The previous part of the article delineates quiet quitting to occupy a space of its own which does not intersect with either the UK concept of work to rule or the Indian concept of go slow. Being fundamentally different from both of these phenomenon, quiet quitting should not warrant punishment under established principles of labour law. However, there is also a cultural argument to be made for the rejection of the ire against quiet quitting by corporations.
A lot of the pushback against quiet quitting comes from the generation of the "baby boomers" who champion the idea that "Gen Z" simply doesn't want to work. This antiquated idea of the expectation to dedicate one’s life to their work is not new. It's a cultural response to difficulties faced by the generation in wars and recessions to find solace in loyalty to corporations, which give them a lifetime of employment and safety in return. Younger generations are choosing to move away from this idea of making one’s life revolve around their work. In this sense, quiet quitting has cultural significance as well.
The reason companies have a problem with quiet quitting is that they rely on workers going beyond the call of duty since this gives them a competitive advantage. Thus, it is not surprising that while the suit by Napoli Shkolnik is the first legal action taken against this practice, there are multiple administrative workarounds to deprive quiet quitters of promotions and take away their fair share of rights in the corporate space.
As an alternative to pursuing legal action, at the forefront of the corporate movement against quiet quitting is Google. Their recruitment process first looks internally to look for employees who have already started taking responsibilities over and above the job description. For external hiring, Google makes use of a hiring committee comprising 5-6 Google employees who undertake a rigorous application and interview process for each candidate. 2 of the 5 aspects that new hires are judged on are employee referrals and internal references. Thus, a recommendation from inside is vital to getting a job at Google.
Especially in sectors which look for young employees, quiet hiring is rapidly gaining popularity. As companies increasingly evolve their hiring strategy to prioritize employees who are willing to go beyond their assigned roles, what results is an effective ousting of quiet quitters from the job market as ‘work above all else’ becomes the norm rather than the exception.
Conclusion
As each generation gets inducted into the labour market, they have vastly different priorities owing to the circumstances they come from. Quiet quitting at its core is an assertion of individual boundaries. Any future regulation of quiet quitting needs to start from a clean slate since this idea is fundamentally different from strikes or even industrial actions short of strikes such as work to rule or go slow. As long as there is adherence to implied contractual terms and no mala fide intention on part of the employee to frustrate the employment contract, quiet quitting is permissible on principle. This cultural shift must be welcomed by labour law.
[1] Secretary of State for Employment v. ASLEF [[1972] ICR 19], [[1972] 2 QB 455].
[2] Ministry of Justice v. Prison Officers Association [[2017] EWHC 1839 (QB)].
[3] Burgess v. Stevedoring Services Ltd [[2002] 1 WLR 2838].
[4] Armstrong Whitworth Rolls Ltd. v. Mustard [[1971] 1 All E.R. 598]; [9 K.I.R. 279, D.C].
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