What is “The Right to Switch Off”?
The Government proposed plans for the “right to switch off” as part of their Employment Rights Bill (ERB). Through this, employees would have had the right to disengage from work-related communications, such as emails, phone calls and other work tasks outside their regular working hours without facing repercussions.
The policy had formed a central part of the Government’s manifesto vow to establish a “new deal for working people”.
There were reports to suggest that a Code of Practice could potentially be introduced which would have set out the requirements. It did not appear to be envisaged that a failure to follow the Code of Practice would have enabled workers to bring standalone claims but rather that the failure to follow the Code of Practice could result in an uplift to any compensation awarded where employers are shown to repeatedly breach agreements on out-of-hours working.
However, the Government is now setting a U-turn on this proposal for fear it will place too much of a burden on businesses. The proposal did not appear in the ERB which is currently making its way through Parliament, but there were promises from Ministers that it would emerge in future.
A government source told the paper: “The right to switch off is dead. We have to lower business compliance costs as much as possible…”
Why “The Right to Switch off” would have been necessary?
Segregating work life and personal life allows employees to find balance. Even though this proposal will not be going ahead, it is still relevant to look at why this right would have been necessary. Here are some key points below:
• Productivity and focus – constant connectivity can diminish concentration during set working hours due to fatigue and overload.
• Respect for personal life – respecting employee’s personal time outside of contractual hours can foster a more empathetic workplace culture.
• Rest and burnout – rest can allow employees to recharge, preventing constant correspondence which may cause feelings of being overwhelmed and an unmanageable workload.
• Mental health and well-being – overworking can result in burnout, stress, anxiety and other mental health issues, work-life balance can be better achieved when employees are allowed to disconnect.
• Legal protection – legal backing from Codes of Practice can help employers to ensure they do not exploit employee time.
• Equality – clear guidance on working requirements helps to ensure all employees are treated equally and held to the same standards.
• Physical health – overworking can contribute to physical issues like eye strain, poor posture, and other injuries.
• Job satisfaction – employees who feel that their time is valued and respected often have a more positive work environment and in turn, higher retention rates.
What rules have different countries got in place?
Various countries have already sought to give employees some form of the “right to disconnect”. Some of these countries are:
• France: All employees have the right to disconnect and companies with 50 employees or more must negotiate an agreement on the right to disconnect with relevant trade unions providing for how they intend to respect this right. There are no specific sanctions for non-compliance, but an individual can bring a claim against their employer for breach of this right.
• Portugal: It is illegal for employers to attempt to contact remote workers outside working hours. There is a carve out for “force majeure” situations, but this is undefined. In practice, the approach adopted is to limit all phone contact outside of working hours and, as in France, to include language in any emails sent out of hours making clear that individuals are not required to reply if the email is received outside of their working hours. Breach of this duty is considered a serious administrative offence, and offending employers may be subject to fines.
• Italy: Employers are required to put in place agreements with agile workers to protect their right to disconnect. This agreement should identify rest time and technical measures to facilitate this right. There are exceptions for certain categories of employee who are deemed to have more autonomy and are therefore usually free to choose when to disconnect, including senior executives. There is no specific legal sanction for the breach of the right.
• Germany: Employees are only obliged to be available outside working hours if their employment contract provides for this.
• Ireland: Ireland’s right to disconnect is established in a voluntary code of practice. It states that employees should not be required to carry out work outside normal working hours routinely and should not be penalised for refusing to do so. Additionally, it provides that employees must respect their fellow colleagues’ right to disconnect by avoiding work-related contact outside of the working day.
What does this mean for the UK?
Whilst polls suggest that the majority of the UK workforce would support a right to disconnect, the Government has now stated it will not create this Code of Practice on the right nor make it a legal requirement. Rather in the UK, the focus has been on strengthening the right to flexible working.
The Government is planning to make Britain the best country in the world to do business, and a key part of that is removing unnecessary barriers.
In the UK, workers are already protected by various means including limits to working time, the requirement to provide breaks, right to respect for private and family life and an employer’s duty of care to look after their employees’ health and safety.
Due to the practical difficulties implementing a right to disconnect, many employers may seek to achieve this balance through the introduction of internal practices and policies which aim to foster cultural change, rather than introducing hard rules which risk causing more harm than good.
