Disconnecting the Dots - Breaking down the “Right to Disconnect”

What is the Right to Disconnect?

In general terms, the right to disconnect refers to the rights of employees to disconnect from work without penalty or detriment, and not to receive or answer work emails, calls or messages outside of their normal working hours.

Many countries have already introduced some form of right to disconnect for employees. In 2017, France famously enacted a “right to disconnect” law, requiring companies with more than 50 employees to negotiate agreements with unions, allowing employees to disconnect from work technology after working hours. Interestingly, although there is no legal right to disconnect in Germany, many employers have made moves at company-level to protect workers’ ability to log off. At Volkswagen, for example, non-management employees reportedly cannot access their work email on their mobile phones between 6:15 pm and 7:00 am. Other German companies, such as Allianz and Bayer, reportedly have similar policies in place.

Closer to home, Ireland is among the first countries to introduce a code specifically addressing the right to disconnect in a post-COVID remote-working environment. In April of this year, Ireland introduced a new code of practice which sets out three main elements of the right to disconnect:

• the right of an employee not to routinely perform work outside normal working hours;
• the right not to be penalised for refusing to attend to work matters outside of normal working hours; and
• a duty to respect another person’s right to disconnect.

Is the right to disconnect on the horizon for UK employers?

While there is currently no right to disconnect under English law, the Government is facing increasing pressure to implement one. In its March 2021 manifesto, the Trades Union Congress (“TUC”) calls for a statutory right for employees and workers to disconnect from work, to create “communication-free” time in their lives. In addition, trade union Prospect wants the Government to enact new protections to enable workers to disconnect, whilst recognising some of the difficulties with establishing a rigid “system cut-off” right to disconnect. Somewhat surprisingly, the 2021 Queen’s Speech did not mention the much-anticipated Employment Bill, which was expected to contain a number of measures to extend and protect workers’ rights, amid fears that they might be watered down after the UK left the EU. Although the pandemic has been blamed for the delay, it perhaps signals that the protection and expansion of worker rights is not currently a key priority for the Government, as it gears up for a post-pandemic recovery. This potentially means that the introduction of a right to disconnect may not be imminent, although this subject is likely to remain relevant and at the top of the agenda for many employers’ groups and unions in the current climate.

At an EU level, the European Parliament made recommendations to the European Commission earlier this year and proposed a Directive which would oblige member states to establish detailed arrangements to enable employees to exercise their right to disconnect, including practical ways to disconnect from digital tools and to provide sanctions in the event of a breach. Whilst the UK is of course no longer a member of the EU, multinational employers may want to take a consistent approach when rolling out right to disconnect policies. An important part of ensuring the success of a right to disconnect policy is to ensure there is respect, understanding and buy-in from management and colleagues across different time zones and countries – it may therefore make sense to implement such a policy “across the board” rather than in a piecemeal manner. Of course, this in itself may present challenges when navigating different legal landscapes, and a broad-brush “one-size-fits-all” approach is unlikely to be effective.

So, what should employers be doing now?

There has been much debate around the benefits of a right to disconnect, and in practice, implementation of such a right may not be as straightforward or beneficial as it may immediately seem. For some, particularly those with childcare responsibilities, the ability to work outside of traditional working hours provides some much-needed additional flexibility and preventing those employees from working beyond a specific cut-off point may actually be more of a hindrance than a benefit. In addition, for employees with regional or international roles, there may be a real business need for work outside of the traditional 9 to 5 in order to effectively carry out responsibilities. Some also fear that preventing employees from accessing emails after hours might have the undesirable effect of pressuring those employees to cram excessive amounts of work into the working day, without taking adequate rest breaks.

The principles underpinning the right to disconnect centre around protecting employee health, safety and well-being. Until further guidance is published or legislation is enacted, employers may want to consider the interim steps below with a view to preventing employee burnout:

• Ensure employees take holidays and rest breaks - the Working Time Regulations 1998 (“WTR”) provide workers with a range of health and safety protections, including daily and weekly rest breaks and paid statutory holiday. In line with the requirements of the WTR, employers should monitor and ensure that:
  • workers take their minimum 5.6 weeks of annual leave in each leave year - of this entitlement, 4 weeks must be taken in the leave year to which it relates. (It should be noted that emergency legislation was passed in 2020 to permit employers to carry forward any unused proportion of this 4 weeks’ leave in to the next 2 leave years where employees were unable to take this leave “due to the effects of the coronavirus” (including of the worker, the employer or the wider economy or society));
  • workers take the following breaks, or rest periods (unless exempt): 11 hours’ uninterrupted rest per day; 24 hours’ uninterrupted rest per week; a rest break of 20 minutes when working more than six hours per day; and
  • each worker's average working time (including overtime) does not exceed 48 hours per week (for those who have not opted-out of the 48-hour working week).
• Check-in and support – employers have a legal duty to ensure, as far as is reasonably practical, that work does not put its employees’ health at risk. To reduce the risk of burn-out and excessive overtime, managers and employees should work together to establish boundaries and routines. Employees should be encouraged to take breaks between video calls, as they would between meetings if they were in the office. Managers should also tune into and notice signs of overwork – regular employee wellbeing check-ins can help managers to keep on top of this and may also assist in preventing feelings of isolation and loneliness. If employees are regularly working long hours where the workload is not unreasonable or excessive, there may be an underlying performance or health issue which needs to be addressed. Without adequate monitoring and support, these issues can quickly spiral into a very difficult situation, for both employee and employer.
• Tackle digital presenteeism, and focus on output – it may not be beneficial to encourage the employee population at large to log off at a specific time. For many, a full-time job is sustainable only if there is flexibility to take breaks for childcare responsibilities, with the option to log back on at a later hour. However, this can unintentionally lead to the wider employee population feeling pressured to also work outside of the normal working hours - a kind of “digital presenteeism”. Where practicable, it may be helpful to implement a “core hours” structure so that employees can ensure they can collaborate and connect within specified hours, leaving them to flexibly arrange the remainder of their working days. When considering and assessing employee performance, the focus should always be on substantive employee output rather than hours of availability, so that employees do not feel pressured to remain logged in.

Although the right to disconnect may not become law in the UK any time soon, it is clear that employee burnout is a significant risk in many industries. Employee burnout can lead to a decline in productivity as well as employee retention issues, as overworked employees look elsewhere for a more balanced workload. Clearly, it is in the interests of employers to ensure that employees are not working excessive hours to the detriment of their health and safety, and/or contrary to the WTR. Even in the absence of a formal right to disconnect, there are plenty of other measures that employers can and should be taking in order to avoid health and safety and talent attrition risks.