Is it time to introduce the right to disconnect?

By Gillian Reid, Head of Employment, Hethertons Solicitors

Disconnecting from work is vital for employee wellbeing and to achieving a healthy, sustainable work-life balance.

The Covid-19 pandemic gave rise to a quantum shift in the working practices of millions of workers, blurring the lines between work and home. Working from home on a hybrid or full-time basis became the norm. Between October to December 2019 and January to March 2022, homeworking in the UK more than doubled from 4.7 million to 9.9 million people.

It’s no secret that the ‘always on’ culture has caused many workers suffered from burnout, stress and disturbed sleep. This has been well documented (Platts, K., Breckon, J. & Marshall, E. Enforced homeworking under lockdown and its impact on employee wellbeing: a cross-sectional study, BMC Public Health 22, 199).

For this reason, certain countries globally have introduced the ‘right to disconnect’ (RTD) – regulations which prevent employers from penalising workers for not engaging with work communications outside of working hours. Those leading the charge include Australia and France.

International RTD policies have given rise to calls for similar regulations in the UK. This raises a number of interesting questions and considerations from an employment law perspective.

What protections already exist?

With consideration to the stress and associated health risks which can arise from not disconnecting, employers do already have a legal duty to protect workers from stress at work by doing a risk assessment and putting in place preventive measures.

Under current employment laws, employees can’t work more than 48 hours a week on average, without signing an ‘opt-out’ agreement.

An employee can make a claim to an employment tribunal if their employer has not followed the law on any of the following:

• Rest breaks during the working day of at least 20 minutes, if the employee is expected to work more than six hours during the day
• Daily rest of 11 hours between working days
• Weekly rest of 24 hours any 7-day period, or 48 hours in a 14-day period
• Statutory holiday entitlement

They may also be able to claim if they have experienced detriment or been dismissed because they raised a concern about working time.

However, there is currently no legal right to disconnect per se.

How does RTD relate to flexible working policies?

Flexible working has been embraced across the full spectrum of sectors where it is possible to do so as a way of enhancing work-life balance and reducing stress relating to commuting. It could be a request for any or all of the following:

1. To reduce or vary working hours;
2. To reduce or vary the days or times worked; or
3. To work from a different location (for example, from home).

In theory, flexible working arrangements would mean increased work-life balance, productivity and well-being for employees.

In December 2022, the government confirmed they will introduce legislation giving people the right to request flexible working from day one rather than needing to have 26 weeks service beforehand, potentially reshaping the world of employment.

From 6 April 2024 the ‘right to request’ flexible working will become a ‘day-one’ right. Employees will now be entitled to make two requests (instead of one) in any 12-month period and employers will have to respond to a request within two months (reduced from three months).

While this is a step forward for workers seeking flexibility in terms of individual days, it has already had a knock-on effect in that, with devices enabling constant communication, employees feel obligated to be available for and respond to work communications at all times.

Introducing RTD – What would this mean?

Employees who work from home should not be expected to be constantly available after hours.

The right to disconnect would go further than traditional flexible working policies by allowing employees the right to switch off their communication devices and send automatic replies if they are not available, without being penalised for doing so.

It does not, as is commonly believed, forbid employers from contacting staff outside of working hours – it simply prevents them from penalising workers for being unavailable after working hours have ended.

Workloads will need to be carefully managed to avoid relying on out-of-hours working to meet deadlines as this could inadvertently penalise workers during work hours.

Additionally, a concern raised by many employers is an inevitable initial bottleneck while companies are updating policies and procedures for handling RTD requests, which will need to be managed as well.

The future of RTD

Angela Rayner, the Labour Party deputy leader and shadow secretary for the future of work said: “Flexible working means work fitting around people’s lives, not dictating their lives” and has backed the need for a right to disconnect in the party’s general election manifesto.

For many, it would be transformational and, what’s more, RTD has the potential to introduce truly flexible working and remove many of the difficulties faced by what was once embraced as the solution to work-life balance.

It seems time, then, to introduce the right to disconnect to the UK – so long as it is carefully managed to meet the requirements of employees and employers.

Naturally, employers need to know what they need to be doing now and what they might be expected to do in the future to meet employee needs.