Whilst many workers across the UK have welcomed the ability to work more flexibly following the covid pandemic, a perhaps unwanted side effect of this new freedom is the difficulty some face switching off from work at the end of the day.
The pervasiveness of workplace messaging applications and platforms means that some individuals rarely disconnect from their job. This, over a sustained period of time, can lead to burnout, heightened levels of stress and a host of other physical and mental symptoms which can, in turn, affect performance at work and life at home. It is perhaps unsurprising, therefore, that in a survey conducted by the CIPD and insurance company Simplyhealth, 76% of people reported stress-related absence in their workplace in 2023.
Under the current legislative regime, UK employers owe their workers a duty of care which extends to supporting their health, safety and wellbeing. There are also various obligations under the working time legislation which employers need to comply with although, in practice, falling foul of these collective obligations is relatively difficult.
The right to disconnect
In its ‘Employment Rights Green Paper – A new deal for working people’ the Labour party hopes to try and address this imbalance by bringing in ‘the right to switch off‘ if it wins the general election later this year.
The hope is that such a right will prevent working from home becoming “homes turning into 24/7 offices” which, in theory, should help encourage employees to enjoy a healthy work-life balance. The specific right which Labour hopes to introduce is the right for workers “to disconnect from work outside of working hours and not be contacted by their employer outside of working hours”.
How will this work in practice?
The right to disconnect is not a novel concept, with the right first being introduced by France in 2017, with Belgium quickly following suit the following year. Since then several countries around the world (including Australia, Brazil and Italy, to name a few) have introduced legal measures to guarantee workers the right to disconnect from work outside of their working hours.
The specifics of the right, and consequences of non-compliance, vary from country to country – with some countries (Spain and Portugal) introducing penalties for non-compliance and others (France and Belgium) stipulating that the rules only apply to employers with at least a certain number of employees. In Belgium, employees cannot be compelled to answer emails, messages or calls outside of their working hours, or be subjected to a detriment for not responding.
Whilst it is currently not clear if a right to disconnect in the UK will be absolute or have exceptions, it seems likely that the right may exclude the armed forces and emergency services (due the nature of such roles). The Green Paper also does not specify the consequences for employers who breach the right.
From an employer’s perspective, it is hoped that the right will include sensible qualifications where a real and reasonable business need to contract arises. There may also be an option allowing employers to include opt outs in employment contracts, similar to those used to opt out of the Working Time Regulations (and specifically the right not to work more than 48 hours on average per week, calculated over a 17-week period).
It is also worth considering that many well-paid executive and professional service roles come with a reasonable expectation that those employees will need to work additional hours in order to meet the needs of clients and the business. However, whilst some sensible derogations will likely be essential to make the right practical in certain industries, the right could effectively be rendered meaningless if any exemptions are too wide and can be applied too easily.
There are also practical obstacles to consider from an employee’s perspective, as they will need to feel empowered to adopt such a right for it to be effective. This means that employers will need to embed work-life balance into the organisational culture so that employees are not prevented from adopting the right through fear of lack of progression or future development in their roles. Additionally, consideration will need to be afforded to those employees who actually benefit from being able to work outside normal working hours (such as those with childcare responsibilities) who are likely to be adversely impacted if a right preventing them from accessing their work email or phone after 6pm, for example, is introduced.
Clearly there is a balance to be struck and any legislation seeking to restrict employer contact outside of core working hours will need to be sensitive to this in order to achieve its desired effect. In the meantime, whilst we wait to see if a right to disconnect becomes a reality in the UK, employers would be wise to consider how work-life balance affects their workforce, particularly as research consistently shows this to be one of the highest priorities for most employees.