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

While digital technology has been a godsend for many during the pandemic, Sarah Ronan looks at whether an out-of-hours work ban could be a step backward for flexible working

During the worst of the pandemic, digital technology kept us safe, connected and, for some, meant we could still keep working.

But the price we’ve paid for that is a rapid intensification of the ‘always-on’ work culture that has been slowly creeping up on us over the past 20 years.

Tackling an always-on culture:

Apple staff campaign against return to office

Switching off an ‘always-on’ culture

Office vs home – how technology can prevent employee divide

In January, analysis by NordVPN found that remote workers in the UK were still logging 22% more hours than they had done pre-pandemic, stretching their average day from nine hours to eleven.

Little surprise then that this has been accompanied by reports of increased burnout and stress.

Research by Capterra found that 75% of workers had experienced more than one symptom of burnout since moving to remote working, with 56% answering work emails on the weekend.

A new proposal to give people the right to disconnect from all forms of work-related communication outside of their normal working hours is being championed as a way of tackling both the unpaid overtime and digital burnout that accompanies remote working.

Trade unions say it would help to set clear boundaries between work and home life, and allow people to enjoy the benefits of true flexible working.

“If you don’t normally work on a Friday evening and you’re sitting down to feed the kids at 7pm, and your boss knocks on the door, barges in, sits down at your kitchen table and demands you start to work, we would say clearly that’s wrong,” explains Andrew Pakes, director of communications and research at Prospect.

“But nowadays with technology, your boss can be digitally invading your private space without any filter of what is appropriate or not, and we need to challenge that.”

The right to disconnect, billed by some as an ‘out-of-hours email ban’, has led to concern among some charities and employers who fear it could inhibit flexible working for those who need it most. “It’s the right ambition, but the wrong intervention,” says Angela Matthews, head of policy and advice at Business Disability Forum.

She is concerned that any such statute could restrict the flexibility required by those who manage long-term health conditions or disabilities and whose working patterns can vary in line with how well they feel and what enables them to do their best work.

Jane van Zyl, CEO of Working Families, has similar concerns, but doesn’t think any form of ban is the right way to tackle presenteeism. “The bigger issue is getting job design right, so that employees can effectively deliver their work in the time that
has been allocated to delivering it,” she says.

Katy Fridman, founder of Flexible Working People, says conversation on their forums points to a scepticism about the impact of such a policy: “Flexible working is about creating your own hours and being empowered to decide your own working pattern, not having it decided for you by a blanket agreement.”

The CIPD echoes this and thinks that legislating for such a right could be counterproductive. “We can empathise with the intention behind the call for a right to disconnect as many employers haven’t done enough to tackle the ‘always on’ culture,” says Rachel Suff, senior policy advisor.

“The problem with a blanket policy like this is that it doesn’t take individual circumstances or preferences into account and could increase people’s stress, rather than help alleviate it.”

Pakes says that it is a misrepresentation of the policy to assume it is about prescribing working hours and claims that where such legislation has been introduced in other countries, it has never resulted in the fears expressed.

Heejung Chung, reader in sociology and social policy at the University of Kent and author of The Flexibility Paradox, agrees that such concerns are unfounded.

“The right to disconnect gets mixed up with some employer practices where, for example, they might disconnect the VPN or server for everyone at six o’clock,” he says.

“Those kinds of practices are very different from the legal right to disconnect which just means you can’t be forced to work at evenings and weekends, and it can’t be held against you.”

But is legislation really the answer to tackling digital presenteeism? France is considered the prototype having introduced the right in 2016. More recently, Ireland introduced a code of practice, rather than legislation. However, there are concerns that any kind of intervention will simply treat the symptom, not the cause.

“It isn’t really tackling the root causes of overwork and stress, such as excessive workloads and unrealistic management expectations,” adds Suff. “We believe it would be much better if employers focused their efforts on this.”

Chantal Cantle, director of people at Dropit, says employers should be trusted to develop their own policies. “If somebody is constantly having to answer emails out-of-hours, even if you’re a global business across different time zones like we are, that says something about the way the business is being run,” says Cantle.

“That says to me that their workload is too high and you need to look at your team structure. That doesn’t need to be enshrined in law.”

More on the right to disconnect:

Businesses should beware false flexibility as lockdown eases

Does your workplace need the right to disconnect?

Flexible working causing divide between leaders and employees

Employers that do opt to develop their own policies need to be careful that they don’t leave themselves open to claims of indirect discrimination though, warns Danielle Ayres, employment partner at Gorvins.

“People with disabilities do have the right to request reasonable adjustments anyway, but a blanket ban on accessing email could disproportionately impact other groups of employees with protected characteristics like pregnancy or even age – lots of older people work flexibly before they retire,” says Ayres.

There are suggestions that an Acas code of practice similar to the Ireland model might be an alternative to legislation, given that it doesn’t define ‘normal working hours’. Published by Ireland’s Workplace Relations Commission, the code is intended as practical guidance to support employers in meeting their existing legal obligations.

Failure to follow the code is not a breach of employment law, but it can be admissible as evidence in claims related to working hours. Codes of practice can be useful to focus the attention of employers, but there’s always the risk that they’ll be ignored.

“Legislation would be really hard to implement,” says Ayres. “But equally, we’ve seen during the pandemic that when something is just guidance, not all employers will follow it. There will always be rogue employers who think it doesn’t apply to them.”

Reform on flexible working rights is an inevitability. The 2019 Queen’s Speech promised to bring forward legislation to enhance flexible working, while the CIPD’s Flex From 1st campaign is calling for a day-one right to request it.

“If we’re going to have that legislation anyway, we would like to see it underpinned by discussion about appropriate boundaries,” says Pakes. “That debate needs to centre on individual worker wellbeing, making sure that workers are in that conversation and not an afterthought.”

Legislation could have other benefits too, argues Chung: “It can help us to rethink productivity, not just for employers but also for workers themselves, helping them to think about ample breaks, and stepping away, which can make them more productive during the day.” It could also help to maintain the Working Time Regulations and set clear parameters for the type of economy and society we are.

“The right to rest isn’t something that is a gift to workers from employers, but it is actually a way in which we try to maintain, if not enhance productivity as a country going forward,” says Chung.

“The right to disconnect says ‘we do not rely on exploiting workers at all hours of the day. Those are not the labour market standards that we are promoting’. As a way to enhance productivity, legislation is possibly more powerful than any other method.”


This piece appears in the July/August 2021 print issue. Subscribe today to have all our latest articles delivered right to your desk.