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Have you tried switching off and on again? The right to disconnect

Kendel Shepherd, Associate at Walker Morris, discusses the legal right for employees to disconnect from work and how it could feature in the new Employment Bill in the UK.

With COVID making employees housebound and isolated from social contact for the last 18 months, it seems some have been increasingly expected to be online and available during out of hours periods. Whether this be an employer or client expectation – where else is the individual meant to be, they couldn’t go out! – or whether this be a flexible arrangement, agreed to work around childcare and self-isolation, there are strong arguments to say that it is not sustainable.

During the last 18 months flexible working has been thrust upon most of us, whether it is just working from home or working around additional care responsibilities, it means in some cases logging on later has been a necessary evil to plough through the workload.

With restrictions now largely lifted and the success of the vaccine programme so far, people can now see a light at the end of the very long COVID tunnel. However, attention now is moving towards how we get back to ‘normal’, or as some people are phrasing it ‘the new normal’.

In December 2019, the Queen’s Speech promised a new Employment Bill that we expect to be published by winter 2021, following delays due to Brexit and the ongoing pandemic. Some unions are trying to ensure a ‘right to disconnect’ is included within the legislation, which will include a raft of other worker protections.

So what is this, what can be seen to some as elusive, right to disconnect?

Essentially, it would be a legal right for employees to disconnect from their work (and electronic work devices) to improve their mental health. The idea being that companies will have a legal obligation to negotiate with their staff and agree rules about when they cannot be contacted for work purposes. This ‘right to disconnect’ would also apply to contact during leave, as well as outside of working hours.

Some unions and employees are keen on this idea and welcome the prospect of a reinforcement of a distinction between work and home-life, that many of us have missed for the last 18 months (or that may never have existed before for some). Equally the suggestion of this new right has seen contrasting opinion and commentary that restricting when people can and cannot be contacted is counterintuitive to flexible working. However, what is clear is that both sides acknowledge that with COVID blurring the lines even more between work and home-life, something needs to be done.

What could the right look like?
Ireland has already introduced a right to disconnect on 1 April 2021 in its Right to Disconnect Code of Practice[1] which requires employers to proactively engage with employees, their trade union or employee representatives, to develop a ‘right to disconnect’ policy. The policy should take into account the needs of the business and its workforce; be reviewed annually; and be referenced in the employee’s employment terms and any induction process. Within the Code, the right to disconnect has three limbs: (a) the right of an employee to not routinely perform work outside normal working hours; (b) the right to not be penalised for refusing to attend to work matters outside of normal working hours; and (c) the duty to respect another person’s right to disconnect e.g., by not routinely contacting them outside of normal working hours. Although the Code is guidance and failure to implement its measures is not an offence in itself, the Irish court and tribunal service allows code of practice failures to be admissible in evidence during proceedings.

In France it has been law since 2017 that companies with more than 50 employees are required to have a charter, negotiated annually, detailing periods when employees should not send or answer emails. Italy and Spain promptly followed in France’s footsteps to implement similar laws to ensure respect for resting periods, holidays and personal privacy.

Will this right be introduced in the UK?
Who knows what the future holds. However, what is black and white is that pre-pandemic, an estimated 17.9million working days were lost in Great Britain due to work-related stress, depression or anxiety[2]. With an increasing feeling by employees that they are expected or required to be online and available outside of working hours, this figure is only expected to rise.

What can employers do?
Even if the right to disconnect is not published in the Employment Bill, employers could implement their own boundaries for employees about contacting one another outside of normal working hours. Of course, one size will not fit all and occasion will call for out of hours contact.

For employers that are looking at ‘new normal’ ways of working, the following suggestions may kick-start a dialogue to plan a realistic post-COVID hybrid way of working:

  1. For emails sent “after hours”, starting those emails with “For the morning” or “For tomorrow” – to signify that the item does not need to be actioned that evening
  2. Limiting email traffic outside of working hours – either by automatically retaining the emails in the ‘outbox’ until the morning or setting up a ‘send at 09:00am’ functionality
  3. Implementing an out of hours contact policy which indicates core hours when contact should not be made
  4. Introduce email footers which state individual boundaries of when employees can and cannot be contacted, or will or will not be available

[1] Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Disconnect

[2] The Labour Force Survey 2019/2020 run by the Office for National Statistics

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