Employees who are consistently contacted outside of their working hours could receive larger payouts under government plans to create a ‘right to switch off’.
The right plan would restrict employers from emailing or phoning staff when they are not on duty, potentially leading to larger employment tribunal payments.
A code of practice on the right to switch off would set out expectations of standard working hours, agreed by employers and employees as part of a policy, according to a report from The Times.
Although a breach is unlikely to lead to litigation, it could see thousands of pounds added onto employers’ compensation awards, as employees may use it as an aggravating factor to boost their potential compensation and likelihood of winning a case.
Established by conciliation service Acas, codes of practice that are currently ignored can lead to compensation increasing by up to 25%. Although employers aren’t legally obliged to follow the codes, they risk having to pay out bigger sums should employees win their claims.
Right to switch off
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Philip Richardson, partner and head of employment law at Stephensons, explained that the government’s plans for a right to disconnect as part of its ‘New Deal for Working People’, mirrors legislation already introduced in other countries, such as France.
He said: “A right to disconnect essentially prevents employers from contacting workers beyond their contracted hours, imposing sanctions for those who breach the legislation. The aim is to create more rigid boundaries between work and home life.
“The proposals that we have seen so far, seem to point to a code of practice being established that both employees and their employers agree to. This would stipulate an individual’s contact preferences and any breaches of this could result in a higher compensation figure at tribunal if part of a broader claim.”
As part of a code of practice on the right to switch off, Richardson highlighted that it will be for an employment tribunal to arbitrate on how serious the breach is and then determine whether compensation should be increased to reflect that breach.
Right to disconnect
He added: “I see no reason why this wouldn’t work in a similar way to how the code of practice dealing with disciplinary and grievance procedures works. Under the code of practice dealing with disciplinary/grievances, compensation can be increased by up to 25% so I suspect something similar in the context of a breach to the right to disconnect.”
Richardson highlighted that the plan could be effective in the context of a constructive dismissal claim where someone felt compelled to leave due to unbearable working conditions, for example. If the individual was contacted repeatedly outside of work and placed under pressure to do work in their own time, the code of practice could be used and compensation increased due to that extra breach.
Daniel Stander, employment lawyer at international law firm Vedder Price, said: “For many employers, there will be a sigh of relief that the government has signalled it will not enshrine a “right to switch off” in law and instead develop a code of practice that recognises that is no one-size-fits-all solution.”
While the right to switch off has been gaining momentum for several years now and is embedded in legal frameworks in around 17 countries globally, he believes the “right” can, and does already, differ depending on jurisdiction.
Stander added: “In the UK, the devil will be in the detail and much of the detail is to be fleshed out. However, if employment tribunal compensation is to be increased for failing to comply with any new code of practice on the right to switch off, employers will need to implement internal policies and processes to help mitigate against this risk.
“This will mean, inevitably, thinking through tricky issues such as what the position would be for employers working across different global time zones resulting in employees interacting at times outside their normal working hours, and whether technological solutions might be adopted to support the right to switch off, including setting blocks/delays to emails being received by staff outside their normal working hours.”
Several challenges
Jo Moseley from Irwin Mitchell’s employment team warned that HR will face several challenges with the new right to disconnect.
She said: “First, developing a flexible yet comprehensive policy that balances business needs with employees’ right to disconnect can be complex. Clear, fair, and adaptable policies are essential. Next, effective communication and training are crucial to ensure all employees understand the new policy and their rights. HR must address any confusion and ensure consistent application across the organisation.
“Monitoring compliance and addressing breaches will also be challenging. HR needs to establish mechanisms for tracking and handling complaints or violations. Encouraging a cultural shift where employees and managers respect the boundaries between work and personal time may take time and effort. HR plays a crucial role in fostering this change and addressing any resistance.”
She added that balancing flexibility and consistency is another challenge. While the government wants employers to have flexibility, HR must ensure the policy is applied consistently to avoid perceptions of unfairness or favouritism, Moseley advised.
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