How robust is the right to disconnect?
CIPD recently reported that a new law has been passed in Australia which will give employees the power to apply for an order to stop unreasonable out-of-hours contact from their employer, which could lead to a substantial fine if breached. In this article, we look at the right to disconnect in the UK, and whether current legal protections are sufficient to safeguard UK workers.
The right to disconnect
Sometimes known as the right to switch off, the right to disconnect addresses any imbalances within an employee’s work-life by ensuring they are not working outside of their normal working hours. It has garnered more interest in recent years as the rise in homeworking and advances in technology have caused the lines between “home” and “work” to become blurred. How easy it is to connect to work content across all electronic devices, and the fact that most of us are on an electronic device for a significant amount of time each day, means the temptation to stay “on top” of things and not be met with a deluge of new emails and information all at once in the morning has, for some, become too much.
Why have the right to disconnect?
Although it may at first seem beneficial to an organisation that staff are regularly working out of hours to get jobs done and respond to queries, it can be very damaging. Staff who are not able to properly rest after a day’s work, and continue the stresses of work out of hours, can become exhausted, less productive and disillusioned in their role, as the excess work impacts on their home life. This can lead to issues in retention and morale, which can negatively impact the whole organisation.
The right to disconnect works to counteract this, encouraging and indeed expecting staff to switch off when they are not working. Not only can it help promote greater staff wellbeing, but it can also be an effective way for the organisation to demonstrate it cares for its employees, something that can help retain staff and attract new employees.
As it currently stands, we do not have the right to disconnect in the UK. However, there are a number of existing provisions within UK law that offer some degree of protection.
The Working Time Regulations 1998
The Working Time Regulations 1998 (WTR) set out during work, daily and weekly rest periods, as well as rules on annual leave. These rest periods should all be uninterrupted (with some exceptions) and should be free from the requirement of doing any work.
An adult worker (18 and over) should have at least a 20-minute break during any workday that lasts for more than six hours. They should also have a daily 11-hour rest period, and at least one day off per week (or two days together in a fortnight). Whilst contact during these hours is not strictly forbidden, the WTR are clear that these rest periods are not for working. Where a rest period has been interrupted by work, the WTR provide for compensatory rest for eligible employees to be provided to ensure the worker has had adequate rest.
Case law
In Alsnih v Al Quds Al-Arabi Publishing and Advertising [2023], the employee was an online news editor. Following issues with duplication of content, the employer introduced a programme to keep track of who was writing what and whether that topic had already been covered. This was accessed via a mobile phone app. The employee was asked to put it on her personal phone (she did not have a work phone), but she refused as she was concerned that the significant volume of notifications the app produced would disturb her outside of her working hours. She suggested her employer provide her with a mobile phone or put the app onto her laptop. The employer, however, did neither and instead instigated disciplinary proceedings, resulting in her dismissal for gross misconduct for refusal to follow her employer’s instruction.
The tribunal upheld a claim for unfair dismissal, finding that it was outside of the band of reasonable responses for the employer to have acted in this way and that alternative options should have been considered long before the point of dismissal.
Whilst this case does not directly deal with the issue of the right to disconnect, it does indicate that it could be “outside of the range of reasonable responses” to not permit employees to exercise this, at least to some extent.
Overtime pay
When an employee is contacted about work outside of their working hours, this raises the question as to whether or not this should be paid as overtime. If they are being asked to perform work, then there is an argument to say that they should be. If we look back to the case of Royal Mencap Society v Tomlinson-Blake, we are reminded that the only time employees need to be paid during a sleep-in shift is when they are awake and working, and the same logic can be applied to out-of-hours work. When it comes to workers paid on or near the National Minimum Wage, care should therefore be taken when asking them to perform work duties out of hours, even if it is just a “quick call”, as these can soon add up.
Future legal change
Should the Labour Party come to power, its New Deal for Working People sets out its plan to introduce the “right to switch off” and introduce new rights to protect workers from remote surveillance. This, it says, is to ensure that legal rights and protections keep pace with the changing nature of work and technological advancements.
The rest of the world
France
Employers with at least 50 workers must establish a right to disconnect policy on after-hours technology use.
Spain
Employers are to set up internal policies defining for employees how to exercise the right to disconnect, including training for staff on the reasonable use of technology to help avoid computer fatigue. Employees working remotely are guaranteed the right to disconnect.
Ireland
A Code of Practice for organisations on how to implement the right to disconnect is in place.
The three key rights enshrined in the Code are:
• the right of an employee to not have to routinely perform work outside of their normal working hours.
• the right not to be penalised for refusing to attend to work matters outside of normal working hours.
• the duty to respect another person’s right to disconnect (eg by not routinely emailing or calling outside of their normal working hours).
Whilst it is always good practice not to expect employees to work out of hours and therefore avoid contacting them during this time, the Code goes one step further. Not only does it prohibit this behaviour from management, but it also gives employees the entitlement to switch off their communication devices and send automated emails when they are not available. The expectation is very much that if a member of staff is contacted out of hours, they are actively encouraged to only respond when back in work.
Australia
In a new law currently passing its way through the Australian Parliament, employers will be prevented from punishing any of their staff who fail to answer unreasonable work calls and emails that come to them outside of their working hours. This new law will also introduce the ability to make a complaint about out-of-hours contact that is intrusive or expected. An order from the Australian Fair Work Commission could be made to stop these practices, and employers who fail to adhere to an order made against them would face fines of $18,000 AUD.
What this law will not prevent is contact in an emergency, or where it is necessary to change the location or hours of work. It will also not stop employees undertaking “on-call” work where contact is to be expected, or for the purposes of scheduling working hours of casual workers.
Takeaway
Whilst we don’t have the right to disconnect in the UK, that doesn’t mean that individual organisations cannot introduce their own version. This can be done through a right to disconnect policy, or simply by encouraging employees to take various measures, such as turning on an out-of-office message during non-working hours and declining to answer work-related calls or other messages until the next working day. Doing so is likely to lead to improvements in employee stress levels and will stop the masking of organisational problems that have been hidden by overwork.
Don’t forget, the right to disconnect could also prove very appealing to many looking for new work, and it may not be in the organisation’s best interests to let a competitor get there first.
For further practical advice and support with implementing a Right to Disconnect Policy, contact The HR Team
