Election talking points: What could a new right to disconnect look like under a Labour government?

During the pandemic, employees embraced the benefits of flexibility around where and when they worked. But for many this also came at the cost of blurring lines between work and home life. As restrictions eased, there was a palpable push from employees to maintain a better work-life balance. For example, many employers met resistance (and continue to do so) when encouraging their staff back into the office.

There has also been mounting pressure on UK employers to fully engage with employee wellbeing and work-life balance. Mental Health UK’s Burnout Report 2024 showed that one in five workers have needed to take time off work due to poor mental health in the last year. Employers are increasingly focused on their wellbeing initiatives and benefits such as Employer Assistance Programmes, with wellbeing days and allowances becoming commonplace.

With burnout figures remaining stubbornly high, there have been calls for the UK to introduce a right to disconnect. A right to disconnect refers to an employee’s right to switch off from work outside of normal working hours.

A right to disconnect has been a growing trend across Europe, originating in France. France introduced legislation in 2017, followed by countries such as Italy and Spain. More recently, Ireland introduced a new Code of Practice on the right to disconnect in 2021 which aims to create a culture of good work-life balance and break bad habits where people feel obliged to respond to messages out of hours.

We consider Labour’s proposals to introduce a right to disconnect and how radical a shift this could be in practice for UK employers.

What has Labour proposed?

Introducing a right to disconnect was first discussed in Labour’s 2021 Green Paper, with a promise to bring in the “right to switch off” which would be “a new right to disconnect from work outside of working hours and not be contacted by their employer”.

In Labour’s Plan to Make Work Pay, (which is backed by a manifesto promise to implement it in full), the party clarified that a new right to switch off will follow similar models implemented by Ireland and Belgium.

What does the right to disconnect in Ireland and Belgium look like?

	Ireland	Belgium
What is the right?	A right to maintain clear boundaries between work and leisure time, including: a right not to work routinely outside of normal working hours; a right not to be penalised for refusing work outside normal working hours; and a duty to respect another’s right to disconnect (by not routinely emailing or calling outside normal hours).	There are two rights: Civil servants cannot be contacted outside of normal working hours (unless there are exceptional circumstances) and should not be disadvantaged for not answering work calls or emails outside such hours. Private sector employers must have a written document (CBA or Work Rules) on the right to disconnect.
When did the right come into force?	April 2021.	With reference to the two rights above: Obligations for federal government came into force in 2022. Obligations for private sector employers came into force in April 2023.
Who does the right apply to?	All employers. There are also a number of express employee obligations e.g. to co-operate with time recording requirements.	With reference to the two rights above: Federal government. All private sector employers employing 20 or more employees.
Is there a requirement for employers to have a Right to Disconnect Policy?	No but the Code recommends that employers engage proactively with employees or their unions to develop a Right to Disconnect Policy.	Not a policy but a right to disconnect must be included in a collective bargaining agreement (CBA) or work rules.
What does any policy need to include?	A Right to Disconnect Policy should: Clearly state that it is about supporting a right to disconnect. Allow for occasional legitimate situations to contact somebody out of hours. Recognise that flexibility may be beneficial to some employees but they should still be able to maintain clear boundaries. Clearly communicate its purpose and method of implementation. Specify that managers play a central role in implementation, and they should be given appropriate training and support.	The CBA or work rules regarding the right to disconnect must, as a minimum, include: The practical arrangements for the employees’ right not to be contactable after working hours. Instructions for use of digital tools to guarantee rest periods, holidays and employees’ private and family life. Training and awareness-raising measures for employees and management on the proper use of digital tools and the risks of excessive connection.
How has the right been implemented?	Code of Practice on the Right to Disconnect.	Legislation.
Is it legally binding?	No, but the Code of Practice can be used in evidence against employers in claims for breaches of employment rights.	Yes.
What are the sanctions?	No specific sanctions for breach of the Code.	There are no specific sanctions for employers who have not implemented the right to disconnect. However, a right to disconnect will be considered part of an employer’s general obligations related to well-being at work. Failure to comply with well-being obligations or a breach of any relevant CBA may result in criminal or administrative sanctions for the employer and/or its representatives.

What might Labour’s model look like in practice?

Labour’s Plan to Make Work Pay says that they will give “workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties”.

This approach appears to be a dilution of what was originally promised by the Labour party but aligns more closely with the Irish and Belgian models. Both these models are focused on employers establishing a written policy (or CBA or Work Rules); neither establishes an absolute right to disconnect (let alone an obligation to disconnect). As a minimum, we expect Labour would require employers to engage with their staff about a right to disconnect policy.

The Irish and Belgian models take a relatively soft approach to implementing a right to disconnect. They are not alone in adopting this type of model. For example, even in France (where the right originated), the legislation only requires companies with more than 50 workers to negotiate on the right to disconnect, or if negotiations fail, to set out a charter of good conduct. The law does not set the content of such a policy, but usually it sets out good practice and the hours when employees are not supposed to send or answer emails. There are also no direct enforcement measures or sanctions for failure to establish this right (or to comply with it) in France (although, similar to Belgium, there would be repercussions for breaching a CBA or other health and safety obligations) except for white collar employees whose working time is counted in days. For these employees, the employer is required to provide the right to disconnect and failure to do so may result in payment of large amounts in overtime.

Other European countries take a more stringent approach. For example, in Portugal, the “right to rest” means that companies with more than 10 staff are prohibited from contacting employees outside of their contracted hours, other than in exceptional situations. Breach of this duty would be considered serious misconduct and could result in significant fines.

In practice, in countries such as Ireland and Belgium, the right to disconnect has made little difference in the day-to-day life of employees. Given the lack of sanctions attached directly to this right, employees are more likely to bring complaints for breach of working time or health and safety, rather than a failure to respect a right to disconnect.

Although the details remain to be seen, at this stage it seems unlikely any detailed proposals from Labour would be enough to cause a seismic shift in the UK’s working culture. Adopting a similar approach to Ireland could see the UK adopting a new non-binding Code of Practice, without any specific sanctions for breach. Even if specific sanctions are introduced, a Labour government would need to consider how such sanctions would be meaningfully enforced, something currently lacking in relation to working time legislation.

When could any changes come into force?

As we write about here, if Labour win the election, it seems unlikely that any legislative change will be implemented before next year. It is possible that a right to switch off could be included in a new Employment Rights Bill, expected to be outlined in the King’s Speech on 17 July 2024. But despite the promise of introducing legislation within the first 100 days of a new Labour government, any new legislation will still require consultation.

How could employers prepare?

With Labour comfortably ahead in the polls, businesses may want to consider how they can proactively prepare for any changes.

• With effect from 1 January 2024, employers do not have to record the daily working hours of their workers. But they must still keep adequate records to show compliance. Employers may want to consider their time recording obligations and how they can assess how frequently and to what extent employees are working outside of their core hours.
• Consider a culture audit to assess workplace culture and whether there are any toxic working habits in particular teams or departments. Please contact our team if you need support with this.
• Consider introducing a right to disconnect policy. Although there is no current requirement to do so, this can be a helpful document to set out your values, culture and expectations. This should be considered alongside a review of existing policies, such as any flexible working or time off policies.
• Consider other measures to better improve an employee’s ability to switch off. Small steps could include encouraging email footers to set out an employee’s working days/hours or encouraging staff to schedule emails to be sent within working hours only. We also continue to see businesses introducing “buddy” systems to ensure appropriate levels of cover and encouraging better use of calendars and communication of working patterns.

For many employers, employee wellbeing remains high on the corporate agenda. Irrespective of a change in government, the above steps will support employees in achieving a better work-life balance.

Thank you to our Ius Laboris colleagues, Sophie and Ester from Claeys & Engels (Belgium) and Fadi from Capstan (France) for their contribution.