The fact that many jobs can now be undertaken from anywhere at any time through the use of technology, together with the increase in hybrid and remote working arrangements since the COVID-19 pandemic, has prompted governments around the world to examine whether and how to intervene to secure workplace protections in this new working landscape.
In an “always connected” world, considerations have turned to whether to legislate to restrict the ability of workers to be contacted outside working hours. This has recently come to the fore in the UK, with the Labour party proposing a new “right to switch off” if it wins power at the next general election. These proposals would likely place restrictions on managers contacting employees by phone or emails outside of normal working hours to support work-life balance but would likely acknowledge that some contact will still be needed in certain circumstances.
It is easy to see why a right to switch off might be an attractive proposition for workers. More flexible ways of working can come with a blurring of the lines between work and home life, which can impact job satisfaction and wellbeing.
On the other hand, many politicians and businesses are mindful of not stifling economic growth or blocking the potential advantages to be had by workers from more flexible working arrangements, particularly where there are existing working time laws that seek to protect against excessive working hours.
Balancing this dichotomy of factors is a challenge. Many governments have responded by choosing to steer clear of legislating to provide a right for employees to disconnect. In those jurisdictions that have taken the leap and legislated, those laws often do not guarantee any individual “right” to disconnect and, instead, simply require employers to agree appropriate disconnection policies with employee representatives. That approach has the advantage of enabling flex, to take account of the nuances of different workplaces and industries.
The exact nature of any right to switch off under any Labour government is currently unclear, although the Labour party has committed to learn “from countries where it has been introduced successfully”. Indications are that it has been particularly interested in the French, Spanish, Belgian and Irish models.
France and Spain were two of the first countries in the world to provide the right to disconnect. The French, Spanish and Belgian models are all based on a legislative right to disconnect, with the practicalities of that right being agreed in workforce agreements or work rules. The right to disconnect must usually be incorporated into such agreements for that individual right to be enforceable in practice.
In contrast, no legally binding right to disconnect exists in Ireland, with the approach instead being based on a non-binding Code of Practice. Workplace collaboration to develop a policy to support disconnection is encouraged, although there is no penalty or standalone claim for an employer’s failure to comply. This approach may have certain advantages but it seems likely that any changes to such practices and policies would require significant consultation with worker representatives to achieve a balanced outcome recognising the needs of the employee and the business.
With reports of “systematic non-compliance” with the right to disconnect in Spain and other countries where a legislative approach has been taken, as well as evidence of an absence of enforcement, it remains arguable whether legal regulation is the most effective route. That record of a lack of enforcement action is perhaps not particularly surprising, given that the penalties are often low and effective sanctioning relies on evidence, which can be lacking due to employers not routinely monitoring and recording all working hours.
Effective enforcement as a tool to drive compliance may not therefore be easy to achieve in practice and without proper enforcement it is difficult to see how a legally binding right to disconnect will work well in practice. If such mandatory route is to be pursued in the UK, the issues of effective penalties and evidence to support enforcement will need to be addressed. This is particularly pertinent in light of the recent change in the law that clarifies that employers in Great Britain do not necessarily need to record each worker’s daily working hours.
What is clear from the experiences of other countries is that for the right to disconnect to become an effective reality, there needs to be sufficient desire from workers for the right in the first place, coupled with effective collaboration with the workforce or workforce representatives to make the right operate effectively for the particular workers and business.
In the event that the Labour Party form the next Government and consult on the right to disconnect they will need to assess the extent to which they can encourage or support discussion and agreement on disconnection within workplaces on a voluntary basis, or whether such collaboration will need to be compelled through legislation.
