The right to disconnect – should employers act now?

A legal “right to disconnect” seeks to give employees the entitlement to disengage from work-related communications and activities outside of their normal working hours. The Covid-19 pandemic has given this issue new prominence. The line between working life and home life has become blurred by mandatory working from home, coupled (for many) with the juggling of caring responsibilities.

There have been upsides to this less distinct boundary between home and work life. Employers and employees have realised that when employees do their work may not be as important as making sure it gets done, and that everyone can benefit from a greater degree of flexibility. One of the inevitable downsides, however, is that people are not always disconnecting from work with the result that employee wellbeing may be suffering.

Work-life “balance” was once the goal that businesses were striving to achieve, but that can imply hard boundaries and rigid hours. Nowadays, the focus is increasingly shifting towards work-life “integration” which involves more flexibility. If that is the new nirvana, the question arises of whether businesses also need to introduce a right to disconnect to prevent burnout.

Prospect, the trade union for professionals such as engineers, scientists and civil servants, is particularly active on this topic. It is urging the UK government to include legislation on the right to disconnect in the upcoming Employment Bill and has published detailed guidance on negotiating workplace policies on employee rights to disconnect.

What is the current legal position in the UK?

While the right to disconnect has not yet been introduced in the UK there are some existing legal obligations relevant in this area, albeit arguably not particularly effective:

• Under the Working Time Regulations 1998, employees are not permitted to work more than 48 hours a week on average (usually averaged over 17 weeks). Employees can choose to opt out of the 48-hour week, with employers in some industries encouraging their employees to opt out due to the nature of their roles.

• Under health and safety law (both legislation and implied duties of care), employers have a duty to protect the health, safety and welfare of their employees. They must do whatever is reasonably practicable to achieve this, which could include allowing their employees to effectively break from work to avoid burnout. The bar for establishing a breach of these duties is set high, however, so they do not amount to a right to disconnect.

• In 2019, in a case brought by a Spanish trade union against Deutsche Bank, the European Court of Justice ruled that employers must keep a record of all hours of their workers each day. However, UK law is not aligned with this and only a few employers are tracking their employee’s hours.

Legal rights to disconnect elsewhere

Other countries in Europe and beyond have had the right to disconnect in place for some years. Since January 2017, France has legally required employers to negotiate agreements with unions for a right to disconnect from technology after working hours. Spain, Belgium and Italy have also introduced regulations about the right to disconnect, while similar legislation has been implemented in jurisdictions outside of Europe such as the Philippines, Argentina and India.

In France, if the union and employer cannot reach an agreement, the employer must establish a policy on the right to disconnect. Yet although France has been regarded as a pioneer in legally recognising the right amid concerns about unpaid overtime and increasing employee burnout, the precise impact is difficult to quantify. In addition, there are currently no direct penalties imposed on French employers who fail to comply.

The right was recently introduced in Ireland through a new Code of Practice, making it one of the first countries to introduce such a measure in the post-Covid, work-from-home era. The Code encourages employers to create a culture of good work-life balance and alleviate employees from the expectation of responding to messages out of hours. It is not legally binding but was built on the foundations of existing legal obligations in Ireland such as the 48-hour week, health and safety obligations and the right to a statement of key terms setting out working hours.

As mentioned above, similar obligations apply in the UK (although Irish employees cannot opt out of the 48-hour week), but the UK government currently has no plans to supplement these with a specific legal right to disconnect.

What are some of the challenges?

The effectiveness of legislating for a right to disconnect is questionable. A right to disconnect is not the same as an obligation to disconnect. UK working time legislation has arguably had little impact on long working hours cultures, because employees opt out in many cases and are not necessarily willing to complain that a right has been breached.

Legislation may also be rather a blunt tool that decreases flexibility. If it has the effect of introducing rigid working hours, it is not clear that this is what workforces would want. Parents with young children, for instance, might not appreciate the inflexibility of being told only to work certain hours and would prefer to take a hard stop at 5pm and log in again later at 8pm. Employees may have become accustomed to choosing different working hours every day as a result of the pandemic. Being uncontactable during evenings and weekends may mean employees need to be “always on” during normal working hours, whereas many might favour greater flexibility and autonomy over their own working hours.

Practical steps employers can take

Although the introduction of a legal right to disconnect in the UK seems unlikely at present, we could potentially see softer intervention as momentum continues to develop. Employers may also come under workforce pressure to act. Employees are expecting more from their employers in relation to protecting their wellbeing and there is greater awareness of mental health at work.

Employers will need to assess the pros and cons of adopting a policy. In practice, it is difficult to combine the option to log off with the freedom to work remotely, and mismanagement of such measures risks compromising some of the flexibility that workers have only recently been able to negotiate since working remotely. There are nonetheless several practices that employers may wish to consider:

• Mental health awareness training in the workplace for employees of all levels of seniority, making sure that the training is updated and relevant to your specific industry and business demands.

• Introducing flexible, hybrid or remote working policies that reference the need to switch off but also balance the needs of the business and the expectations of different employees. Rigid hours may be appropriate in some individual circumstances, but this is not true for all roles and all employees.

• Investigation of what makes employees reluctant to disconnect and whether any specific interventions are needed - for example, to address an excessive workload or inappropriate behaviour from managers.

• Looking at communication measures, such as email footers or subject headers saying that the message is not urgent or that a response today is not necessarily expected. While in some businesses this may not be the right message to appear on emails to clients, there are those who are distinguishing between internal and external communications. We are also seeing businesses introducing “buddy” systems to ensure appropriate levels of cover and encouraging better use of calendars and communication of working patterns.

• Considering time recording? One of the consequences of the Irish Code of Practice may be the rollout of time recording in sectors where this has not historically been commonplace. It will be interesting to see if more UK employers start to do the same. For many jobs, employers already have a considerable amount of data on working hours, but the challenge is how to use it in a way that complies with data protection requirements and is not regarded as overly intrusive by employees.

• Encouraging employees to take up their annual leave entitlement. It is important to encourage employees to take a break away from work even if current restrictions mean they are not booking a holiday overseas. Annual leave policies are an important tool for combatting employee burnout and now is a good time to check that employees are taking their leave and properly disconnecting from work, even if they are only enjoying staycations.

See also the first two articles in our holiday series, covering the legal issues around employees asking to extend their holiday abroad by working remotely and other HR headaches for the holiday season.