New Deal talking points: New details emerge on Labour’s right to switch off

Last week, the government reiterated its commitment to introducing a right to disconnect, arguing that enabling workers to properly “switch off” will in fact improve economic productivity. Whilst details as to how this will be implemented are limited, there are suggestions that the new right will be contained in a code of practice rather than existing as a self-standing cause of action. Even though questions remain, employers should be prepared to respond as and when the right to switch off is turned on.

What is the background to this proposal?

There have been increased calls to introduce a right to switch off due to higher levels of employee burnout and changing working patterns. Following the pandemic, the lines between work and home life have become increasingly blurred, and achieving a better work-life balance is often identified as a priority by employees, particularly Gen-Z.

Recent comments from the Prime Minister’s deputy spokesperson reiterated Labour’s commitment to this proposal and made clear that the government intends to ensure that people have time to rest and avoid the encroachment of work on their home life.

What do we know about how the new right is going to operate?

The idea of a right to switch off was first floated in Labour’s 2021 Green Paper and clarified in their pre-election ‘Plan to Make Work Pay’. This envisaged following the example set by Ireland and Belgium, something we explored in detail here. Both the Irish and Belgian models take a relatively soft approach to implementing the right, with no direct sanctions attaching to it in either country.

Whilst the details of how this right will be implemented are yet to be finalised, reports have emerged that the government is considering the following approach:

• Code of practice: Enacting the right via a code of practice rather than enshrining it as a freestanding legal right. It is expected that a code of practice would require employers to implement right to switch off policies, with the government source emphasising that policies would be “specific to each workplace”. We often see codes of practice introduced to effect change without prescriptive legislation, setting out guidelines for employers across a range of topics from flexible working to discrimination law. The effectiveness of codes of practice is reinforced by the power of tribunals to take an employer's compliance into consideration.
• Uplift: This approach would mean that employees would not be able to bring a tribunal claim based solely on a failure to respect the code. Instead, it is likely that breach of the code of practice could lead to an uplift in the compensation an employee might receive when bringing a tribunal claim in respect of other connected claims. It’s likely that this would operate in a similar way to the Acas Code of Practice on Disciplinary and Grievance Procedures, for example, which employers are very familiar with. Breach of the Acas Code does not give rise to a standalone action but must be taken into consideration by an employment tribunal where relevant (e.g. on the question of whether a dismissal was fair) and an unreasonable failure to follow it can lead to an adjustment in compensation of up to 25%.
• Flexibility: Mindful of the potential impact on smaller businesses and certain industries, indications are that the government will not be pursuing a “one size fits all” approach. They appear to be suggesting that right to switch off policies will need to be agreed between employers and employees and tailored to the specific workplace. This reflects the position in Belgium where employers are required to agree contact hours with their workforce.

What questions remain unanswered?

Whilst these recent reports have added some colour to what the new right might look like, many of the details are yet to be finalised. The following questions remain unanswered:

• What would a code of practice require?

Recent reports have added little detail to what the substance of a future code of practice might look like. In addition to clarifying expectations around out of hours contact, some reports have suggested that plans would extend to regulating contact during annual leave. However, meaningful detail remains to be seen.

It is also unclear whether an uplift would arise from a failure to follow the internal right to switch off policy, or whether this would instead be linked to breaches of the code of practice only. The latter approach – potentially setting a lower bar for compliance - would be more closely aligned with how the Acas Code operates and arguably less interventionist in effect.

• Will the code of practice apply to all employers?

As we have noted, the government spokesperson emphasised that the plans were not a ‘one size fits all’. How far this will be taken remains to be seen, with one possibility being that the code of practice will only apply to employers with a certain number of employees to reduce the burden on smaller employers.

Some commentators have welcomed this approach, arguing that some industries can’t operate effectively if they’re unable to contact key employees if needed urgently (August’s summer holiday market turmoil perhaps being a case in point). Also, many employees value the flexibility of managing their own working hours around other responsibilities and would be keen to retain that flexibility.

• What will the sanctions be for non-compliance?

As outlined above, there have been suggestions that the penalty for non-compliance would be similar to that for failure to follow the Acas Code, i.e. that there would be the power to increase compensation due in respect of other claims. However, this mechanism is yet to be formally confirmed and so too is the level of uplift that could apply. However, the power to award an uplift would certainly give teeth to the right to switch off.

• Which claims would an uplift apply to?

Whilst the Acas Code has an obvious link to particular claims (for example, unfair dismissal claims for failure to properly follow the disciplinary procedure), it is less clear what the right to switch off would attach to. A constructive unfair dismissal claim arising from excessive working hours? Or will we see this linked to sex discrimination claims alleging that an employer is not accommodating the needs of working parents?

• What will the practical impact of the code of practice be?

Clearly there is political commitment to creating a working culture that values work-life balance. But the impact of any future code of practice will come down to the detail of how it needs to be put into practice. The potential for an uplift in compensation should mean this can’t be ignored by employers, but without specific sanctions directly attached to the right to switch off, it remains to be seen whether this is a right capable of being meaningfully enforced.

What can we learn from Ireland and Australia?

The right to disconnect came into force in Ireland in 2021. Implemented by a code of practice, this is not legally binding but can be taken into consideration in claims against employers for breach of employment rights. When it was introduced (notably when Covid restrictions were still live, so many people were still working at home), there was a lot of media attention. However, given Ireland does not have an “opt out” of the 48-hour maximum working week, and there is a positive obligation on employers to monitor and keep records of working hours, the practical impact has been minimal.

It has, though, served as a helpful reminder to managers to be mindful in terms of their internal communications on the urgency of work or their expectations on timelines, and has also reminded employees of their obligation to flag to their managers when they’re not in a position to take the requisite breaks. In terms of work practices, there has also been an increase in the inclusion of e-mail footers confirming that unless the sender specifies otherwise, a response is only expected within normal work hours.

Looking further afield, this issue is also headline news in Australia where a “right to disconnect” has just come into force. Staff who are contacted out of hours now have the right not to reply under that is unreasonable. Australia’s Fair Work Commission has enforcement powers, potentially backed up by fines so the changes do look to have teeth.

How can employers prepare?

It’s clear that introducing a right to switch off remains firmly on the government’s agenda. Businesses would therefore be well advised to proactively prepare for this, in whatever form it may take.

In our previous article on the subject, we set out potential actions that employers could consider. Now may be the time to undertake an audit of workplace culture and define values and expectations around these issues. Regardless of future regulation, prioritising work-life balance is good for employees and the business.