· Comment

What impact would a right to disconnect have?

A reasonable and practical balance needs to be struck for both the employer and employee

Australia has just joined some other countries, including France, Spain, Portugal and Belgium, in adopting a ‘right to disconnect’ from work in various forms.

A right to disconnect essentially prevents employers from contacting workers beyond their contracted hours, imposing sanctions for those who breach the legislation. The aim is to create more rigid boundaries between work and home life, providing that employees are not subjected to unreasonable expectations and obligations, allowing them to fully detach and thereby enjoy their downtime and private life.  

Is an out of hours ban a step back in time?

Homeworking and advanced technology have dramatically changed the landscape, allowing workers to be agile and potentially making it more difficult to switch off when leaving the office at the end of the working day. However, for many, this change is welcome, providing a more flexible and manageable work schedule – particularly for working parents and those with caring responsibilities. However, on the flip side, remote working has encouraged an ‘always on’ culture, blurring the lines between the home and the office. A right to disconnect seeks to address the possibility that some employers will try to take advantage of this shift in working patterns and culture.

Existing legislation 

The Working Time Regulations 1998 provide for a working week of no more than 48 hours on average, calculated over a 17-week period. However, many organisations require staff to opt out of these regulations and visibility about how it works in practice, especially with people working off site, is more difficult. Australia’s employment law is similarly structured to the UK, with National Employment Standards, imposing minimum pay provisions and maximum work hours. Despite this, Australia has decided to impose further conditions to protect employees’ working hours. The question is whether Britain will follow suit. It’s believed a right to disconnect may form part of Labour’s general election manifesto, and so could be on the horizon.

What does a legal right to disconnect look like?

There will be many practicalities to debate, such as how serious the circumstances would need to be for an employer to breach this new legislation, and the industries that might be affected. For example, along the same lines as Working Time Regulations, it would likely exclude the armed forces and emergency services, so as not to interfere with crucial services that rely on the employee’s ability to be available and on call. There might also be the option allowing employers to include opt outs in employment contracts, much like those used to avoid the Working Time Regulations. This would substantially reduce the burden of any future legislation on employers, but it could easily be seen as a watering down of workers’ rights by advocates of the right to disconnect.

UK workers want to ban out-of-hours emails

And let’s not forget that in very well-paid executive and professional service roles there’s a reasonable expectation that employees work ‘beyond the clock’ according to the needs of the business and the clients. That is, in effect, what they are being paid for, with an accepted quid pro quo that it may impact on the quality of their work/life balance.

For flexible workers and those who enjoy the ability to be agile, home working could be compromised by this legislation, meaning working from home is less viable if staff have to abide by a more restrictive regime within core hours. Employees may no longer be able to work to their own schedule, due to employers’ fears that by enabling communications during anti-social, non-core hours, they will breach the legislation.  

If the UK does not embrace this legislation, what might an alternative look like?  

Perhaps an increased burden on employers to account for their duty of care to their employees and more effective mechanisms for managing work-related stress and anxiety. For example, ensuring that monitoring software is not just a tool for employers to check on productivity but also a means to identify employees who are regularly working or checking emails beyond their contracted hours and thereby giving employers the opportunity to discuss this and recognise their legal duty to protect employee’s mental, as well as physical health. 

Does your workplace need the right to disconnect?

No doubt captains of industry and boardrooms will be highly sceptical about the prospect of further restraints being put on employers in this context when many would prefer to get everyone back to the office more frequently. A reasonable and practical balance needs to be struck for both the employer and employee, as we try to navigate the new normal and the benefits and challenges it presents in equal measure.

By Tania Goodman, partner specialising in employment law at Collyer Bristow