It is likely that some sort of ‘right to disconnect’ will be included in the government’s Autumn legislation. Will the UK go with a code of practice, such as that of Ireland, or add teeth, thus following examples in Belgium and Australia, asks Mini Chandramouli of Fieldfisher.
The phrases the “right to disconnect” and the “right to switch off” have been filling our headlines recently, with one of Labour’s election pledges – to be highlighted in the forthcoming Employment Rights Bill – being to give workers the right to disconnect from work outside of their normal working hours and not be contacted by their employer. So how will the new right proposed by the Labour government be implemented in the UK and what impact will it have on working practices for employees and employers?
The government has hinted at introducing a code of practice for employers, which would provide guidance on how the right to disconnect should be applied. However, they stopped short of suggesting that there would be a standalone claim available to employees for a breach of the right. Instead, a failure to follow a code could be considered by a tribunal when deciding the level of compensation to be awarded to an employee for other claims, in a similar way to how the ACAS Code of Practice on Disciplinary and Grievance Matters is currently applied.
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What is clear is that some form of the right will be introduced and the expected proposal closely mirrors the position in Ireland – so what can we learn from our Irish colleagues and how can businesses prepare for this change?
Practical steps to consider
The Irish code of practice provides practical guidance and best practice suggestions to employers regarding the right to disconnect and meeting their obligations under existing legislation (for example, heath and safety and working time) given this right. The code encourages employers to engage with their staff to develop a policy which takes into account the particular needs of the business and its workforce, recognising that the same policy is not going to be appropriate across businesses and industries.
The policy is not mandatory in Ireland, however, as a failure to follow the code can be admissible in respect of other claims by an employee. But it is still recommended that all employers have a policy in place. The Irish code acknowledges that operational needs may dictate situations that require out of hours working. This acknowledgement and the absence of any additional sanction for a breach of the code itself means in Ireland the balance of power remains with the employer in determining when it may require its staff to work out of hours under any right to disconnect. Based on current commentary, it seems the UK position is likely to be similar.
On this basis and with the balance still in favour of employers, businesses will be in a stronger position if they set expectations with staff early around the right to disconnect. This means formulating a policy which acknowledges and respects the right, while having clear guidance and measures in place to ensure that operational needs are not negatively impacted by it.
If employees are left to make their own assessment as to when out of hours contact is/is not appropriate in the absence of a policy, it seems more likely that they will raise a breach of a code as part of another claim, as they do not have written guidance as to how the code applies to their business/role in practice. In Belgium, there is a mandatory right to disconnect (except for private sector employers with fewer than 20 employees). The UK will most likely take elements from Ireland and Belgium. If we take the lead from Belgium on what an appropriate policy may include, then we know it should touch on the following:
- A commitment to respect employees’ right to disconnect, with an acknowledgement of the circumstances in which an obligation to perform work outside of hours may be necessary and best practice communication so employees are aware of when work is urgent.
- Practical arrangements for the application of an employee’s right not to be contacted outside of working hours e.g. deactivating email notifications outside of hours.
- Instructions on how to use digital tools in a way that ensure the employee’s rest period, holidays and family life are respected by, for example, implementing the delayed send feature on emails or normalising flagging when an email sent outside of hours is not urgent.
- Training and awareness measures for employee and management on the sensible use of digital tools and the risks associated with excessive connection; for example, decreased productivity, stress, burnout etc.
- If the right to disconnect is implemented in the UK in the way currently suggested, then it seems that understanding the code, putting in place a policy appropriate to the industry, business and workforce and ensuring staff understand its purpose and goals will place businesses in a strong starting position.
Will this change have a real impact?
The proposed right to disconnect for the UK, if similar to the Irish code, would encourage employers to abide by the code and put in place a policy appropriate for its workforce. However, there would be the clear caveat that where certain types of roles/seasons/projects require working outside of hours, the code may have limited applicability.
On this basis, the expected proposal seems designed more to spark conversations between employers and their workforce about the expectation to work outside of hours and how business needs and employee wellbeing can be balanced. It is not designed to set a stringent approach upon employers and in fact a strict application of the right to disconnect may inhibit the welcomed flexibility brought by the pandemic.
In Ireland this approach has meant a limited recognisable shift in attitudes and approach to working outside of normal hours. In Belgium, where a policy is required, the real impact again seems to have been inconsequential, particularly for those professions where regularly working outside of hours is the norm.
This signals that to see a systemic cultural shift in working practices, more prescriptive intervention by the government may eventually be necessary in the UK.
The proposal is still a welcome change, particularly since we have seen similar rights being implemented globally, most recently by our Australian counterparts. In Australia, the change has more teeth as employees can bring a standalone claim for a breach as well as if adverse action is taken against them for reasonably exercising their right to disconnect. If the Australian approach is effective, this may be something the UK wishes to explore.
As a starting point though, we are seeing the spotlight shift from employees justifying not responding to an email outside of hours to employers having to justify expecting a response outside of hours.
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