Have you tried switching off and on again? The right to disconnect – is this the future?

9th August 2021

The legal right for employees to disconnect from work, will it feature in the new Employment Bill

With COVID making employees housebound and isolated from social contact for the last 16 months it seems some have been increasingly expected to be online and available during out of hour’s periods. Whether this be an employer or client expectation – where else is the individual meant to be, they can’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 16 months flexible working has been thrust upon most of us, whether it is just working from home or working around childcare and children being under your feet it means in some cases logging on later has been a necessary evil to plough through the workload.

As the COVID restrictions are starting to ease and people can see a light at the end of the very long COVID lockdown tunnel, attention is moving to how we get back to ‘normal’ or as some people phrase it, ‘the new normal’.

In December 2019, the Queen’s Speech promised a new Employment Bill and winter 2021 may well be when this is eventually published (following delays due to Brexit and COVID). Some unions are trying to get a ‘right to disconnect’ to be 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. 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 (Code) which requires employers to proactively engage with employees (or 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 measure 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?

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 . 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.