Switching on the right to switch off

The Labour Party previously unveiled plans for a “right to switch off” for workers if they win the next general election. The proposal followed concerns about work-life balance, where the widespread shift to remote working has led to worries about the difficulty for many in disconnecting from work. 

However, it remains to be seen how such a proposal would be taken forward, for example in voluntary “best practice” guidance or legislation. Much can be learnt from the experience of other jurisdictions.

The right to disconnect – a European perspective 

Although discussions surrounding the right to disconnect have increased following the pandemic, it is not a new concept. Various countries have already sought to give employees some form of the “right to disconnect”, enabling them to disengage from work and work-related communications outside of working hours, without fear of facing negative repercussions: 

• France: All employees have the right to disconnect and companies with 50 employees or more must negotiate an agreement on the right to disconnect with relevant trade unions (or, if agreement cannot be reached, adopt a unilateral policy) providing for how they intend to respect this right. These agreements typically set limits on when employees can be contacted, or provide that where emails are sent out of hours, they must be clearly marked to state that the recipient is not required to respond if it is received outside of their working hours. There are no specific sanctions for non-compliance, but an individual can bring a claim against their employer for breach of this right. 
• Portugal: It is illegal for employers to attempt to contact remote workers outside working hours. There is a carve out for “force majeure” situations, but this is undefined. In practice, the approach adopted is to limit all phone contact outside of working hours and, as in France, to include language in any emails sent out of hours making clear that individuals are not required to reply if the email is received outside of their working hours. Breach of this duty is considered a serious administrative offence and offending employers may be subject to fines.
• Italy: Employers are required to put in place agreements with agile workers to protect their right to disconnect. This agreement should identify rest time and technical measures to facilitate this right. There are exceptions for certain categories of employee who are deemed to have more autonomy and are therefore usually free to choose when to disconnect, including senior executives and certain individuals in technical or professional services roles. There is no specific legal sanction for the breach of the right.
• Germany: Employees are only obliged to be available outside working hours if their employment contract provides for this. 
• Ireland: Ireland’s right to disconnect is established in a voluntary code of practice. It states that employees should not be required to carry out work outside normal working hours routinely and should not be penalised for refusing to do so. Additionally, it provides that employees must respect their fellow colleagues’ right to disconnect by avoiding work-related contact outside of the working day. 

There have been calls to introduce the right to disconnect as an EU-wide fundamental right to tackle concerns about the ‘always on’ work culture. This gained momentum in January 2021 when the European Parliament approved a resolution in favour of the right. It called on the European Commission to introduce EU laws setting out minimum requirements for remote working, working conditions, hours and rest periods, with a view to enabling employees to enjoy time away from work without being disturbed unless there is an agreement to do so. A proposal is currently being prepared although the amount of time that has now passed indicates it may not be a legislative priority.

Supporters of introducing such a right in the UK suggest that this could benefit both employees and employers, by increasing staff morale and reducing burnout, with consequential positive impacts on staff productivity and retention rates. 

The current position in the UK

In the UK, workers are already protected by various means including limits to working time, the requirement to provide breaks, right to respect for private and family life and an employer’s duty of care to look after their employees’ health and safety. However, there is currently no right to disconnect. 

In 2021, the House of Commons Library published Flexible working: Remote and hybrid work, a briefing paper setting out possibilities for reform including establishing the right. 

However, whilst polls suggest that the majority of the UK workforce would support a right to disconnect, the current UK government has not indicated plans to create a code of practice on the right nor make it a legal requirement. Rather in the UK, the focus has been on strengthening the right to flexible working. The current flexible working regime is set to be reformed from April 2024 when making a request will become a ‘day one’ right. Find out more about the upcoming changes in our blog here.

Challenges

It is clear from the countries that have already implemented this right that it is not without its challenges. 

One of the main issues with introducing a right to disconnect is how this right should be approached. Where countries have sought to take a flexible approach (for example, the voluntary nature of the Irish code and the fact that there is no direct sanction for non-compliance in France and Italy), these attempts have been criticised for having limited impact. However, taking a strict and inflexible approach (as in Portugal) may be unworkable in industries which necessarily require individuals to work outside of normal hours to meet business needs, or where emergency situations arise. 

A connected issue is that of policing compliance with the right. One suggested approach would involve employers introducing technology such as tools blocking email delivery outside certain hours. For example, it was reported that a German car manufacturer prevented its email servers from delivering emails to some employees overnight or who were off-shift or on holiday. However, a ‘one-size-fits-all’ approach to this could expose organisations to potentially damaging situations where workers are unable to respond to important and unexpected issues that arise outside of working hours.  

Indeed, despite good intentions, a strict application of the right to disconnect could also potentially reduce the ability to work flexibly. For many, this increased flexibility is one of the biggest positive impacts of the pandemic. However, introducing a right to disconnect could involve reverting to fixed and rigid “normal” working hours, with potentially less willingness from employers to agree to shift these to accommodate things such as caring responsibilities. 

Given concerns about work-life balance are one of the main reasons cited by individuals choosing to leave the workforce altogether in the wake of the pandemic, addressing this perceived imbalance is currently a key focus for many employers. However, because of the practical difficulties implementing a right to disconnect, many employers may seek to achieve this balance through the introduction of internal practices and policies which aim to foster cultural change, rather than introducing hard rules which risk causing more harm than good. However, employers may need to prepare for mandatory rules if a change in government brings about new rights for employees to disconnect from work.