This is something of a u-turn, as it was central to Labour’s manifesto promise to provide a new deal for working people. It will offer some relief to businesses that the right to disconnect has been deprioritised though, sparing employers from the legal consequences and reputational damage that might stem from non-compliance.
Read more: What impact would a right to disconnect have?
Without the need to navigate these concerns, employers, (especially those in client-service sectors) can continue to take advantage of maintaining employee availability during off hours, which can be a key component of offering good service and meeting client needs and expectations.
This is offset, however, by several other looming reforms that will inevitably induce concern for employers.
Day-one rights
One such reform is the removal of the existing two-year qualifying period for an employee to bring an unfair dismissal claim against their employer. Employers will have reduced flexibility when it comes to dismissing employees who do not meet expectations early on, and will need to significantly enhance their recruitment processes to minimise the risks of this happening.
The end of fire and rehire
Similarly, there is concern over proposed changes to dismissal and re-engagement practice. The Employment Rights Bill will limit the ability of employers to use this practice. Specifically, if employment is terminated because an employee refuses to agree to a variation of their contract, any subsequent dismissal will be deemed automatically unfair.
Flexible working
A further change relates to flexible working requests. From April 2024, the following changes regarding an employee’s right to make flexible working requests came into force:
- Employees have a day-one right to make flexible working requests.
- Employees can make two requests per year.
- Employers have a duty to consult with employees before refusing a request.
- Employers have two months to provide their final response.
Read more: One in three UK CEOs would deny right to disconnect
Not only will this result in an additional administrative burden for employers, but they will also need to be wary of the risk of discrimination claims, with particular risk stemming from any refusal to requests made by employees with caring responsibilities (e.g. women returning from maternity leave).
Is it the end for the right to disconnect?
The above changes illustrate the growing priority placed on workers’ rights, and it’s therefore it possible that the right to disconnect will resurface in the future. The introduction of remote working and hybrid working arrangements, while offering a welcome flexibility to many people, has resulted in work and personal lives becoming intertwined in an unprecedented way, thereby stimulating an always-on work culture. A handful of countries, including Ireland, France, Spain and Belgium have already recognised the need to ensure that such a culture is not unduly exploited by employers and have introduced a right to disconnect in some form or another, to help manage the expectations of employees beyond normal office hours.
Ireland’s model serves as a useful example of how a right to disconnect has already been implemented. The Irish Code of Practice highlights the three critical rights for employees:
- The right of an employee to not have to routinely perform work outside their normal working hours.
- The right not to be penalised for refusing to attend to work matters outside of normal working hours.
- The duty to respect another person’s right to disconnect.
It will be interesting to see how proposals might re-emerge. There may well be be a more balanced approach that provides flexibility for businesses that rely more heavily on and pay more favourably for after-hours availability.
Read more: How can HR support employees’ right to switch off?
Rather than imposing a one-size-fits-all approach, it could encourage bespoke policies suitable to particular industries, focused on employee wellbeing and debunking an unhealthy always-on mentality.
By Tania Goodman, partner and head of employment at Collyer Bristow
