The Right To Disconnect

We can all agree that technology and remote working have transformed the way we work. Many employers are no longer suffering the daily commute or feeling trapped in the rigidity of the 9-5 working day.

Employers also benefit from being able to reach their employees outside of the ‘normal’ working hours.

However, this is a more negative side to this ‘always on’ culture. If these issues are left untreated, this can result in an unhealthy, disengaged, and unproductive workforce.

Whilst this area is already embedded in employment law. There are further calls to introduce a positive ‘right to disconnect’ for employees but what does this mean in practice?

What is the right to disconnect?

There is no clear definition (yet) but in general terms it is a legal right for an employee to down tools at the end of their normal working hours and to not be penalised for failing to respond to any work-related communications outside of these hours.

What currently exists legally?

Working Time Regulations 1998: This legislation was introduced to implement the Working Time Directive. It is intended to protect the health and safety of employees (including ‘workers’) but putting safe limits on their working time. Employers’ main obligations include:

• Taking reasonable steps to ensure an employee does not work more than 48 hours per week, including overtime.
• Providing adequate rest periods, 11 hours uninterrupted per day, 24 hours uninterrupted per week (or 48 hours’ uninterrupted rest per fortnight) and a rest break of 20 minutes when working more than six hours per day.
• Allowing employees to take 5.6 weeks holiday per year.

However, employees can choose to opt out of the 48-hour week. although this should be voluntary and it is possible to bring a detriment claim under s45A of the Employment Rights Act 1996 if they feel pressurised into (or mistreated for) doing so- employees in certain industries usually feel they have no choice. This is particularly the case at recruitment stage or prior to promotion.

Another limitation is the definition of ‘working time’ is restricted to time when the employee is:

• Working
• Carrying out their duties; and
• At the employer’s disposal

It does not include voluntary:

• Unpaid overtime
• Working from home: or
• Responding to telephone calls out of hours (including when travelling).

Under current legislation, employees ‘choose’ to carry on working during their rest period and there is no protection for anxious employees who find it difficult to switch off from work or who perhaps feel they will be penalised for not responding to work-related messages on time.

Health and safety: Employers have a duty to safeguard the health and safety of their employees at work as a result of common law and also under the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999.

These laws require employers to carry out risk assessments (among other things) to identify the risks to employee mental health (such as work-related stress) and to take reasonable steps to prevent or reduce such risks.

There are also examples of where unfair dismissal has been used to prevent employers from dismissing employees who maintain a work life balance.

Employees may also be covered by disability discrimination law particularly around workplace stress and anxiety.

So what is on the horizon?

In 2021, the European Parliament took steps to introduce a right to disconnect. Whilst this EU law has not yet been introduced and the UK would no longer be obliged to implement it, several countries have put in place some form of the right to disconnect over the past few years.

For example, Italy requires the employer to specify what technical and organisational measures they have to guarantee a worker’s right to disconnect. France requires employers with 50 or more workers to negotiate with unions to allow employees to disconnect from work technology outside working hours.

Portugal has gone even further by introducing a ‘right to rest’ which prohibits employers (with more than 10 staff) from contacting employees outside of their contracted hours, other than in exceptional situations.

If you would like any advice on reviewing policies or advice on how to keep within the current parameters of employment law on this issue then please Just Ask!

(Daniel Barnett, HR Inner Circle, 2023)