With recent media reports that the Government is considering how best to practically implement a right to switch off, it seems that the UK will be following countries including Ireland, France, Belgium and most recently, Australia, in introducing a right to disconnect.
As someone who started work before mobile phones were widely available, and when most solicitors did not have an individual email address, I am of the generation that can remember leaving the office in the evening, at the weekend or to go on holiday and not being contactable until my return. But times have changed, particularly so since the pandemic. Agile working gives the flexibility to work at times and from places that suit the worker and the Government says that the aim of the right is to prevent working from home and turning homes into 24/7 offices.
Labour's Plan to Make Work Pay which set out, prior to the election, Labour's future plans, indicates an intention to follow similar models to those already in place in Ireland and Belgium, giving workers and employers "the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms". How the right will work in the UK is very much in its infancy, but what can we learn from the Belgian and Irish models? In Belgium, since 1 April 2023, employers in the private sector with 20 or more employees must include the right to disconnect in collective bargaining agreements or work rules. These must, as a minimum, include (1) provisions regarding the practical arrangements for the application of the employee's right not be contactable after working hours; (2) instructions for the use of digital tools to guarantee rest periods, holidays, and employees' private and family life; and (3) training and awareness-raising measures for employees and management staff on the use of digital tools and the risk of excessive connection. If an employer fails to respect the right to disconnect then in Belgium this could be seen as a failure to comply with pre-existing obligations related to well-being at work that may result in criminal or administrative sanctions for the employer and/or its representatives.
Meanwhile in Ireland, a Code of practice on the right to disconnect was introduced in 2021. The Code provides practical guidance and best practice to employers, employees and their representatives on the right to disconnect. This includes providing assistance to employers in developing and implementing procedures and policies to facilitate the right to disconnect as well as guidance on resolving workplace issues arising from the right, both formally and informally as may be appropriate. It defines the right to disconnect as having three main elements:-
- A right not to work routinely outside normal working hours;
- A right not to be penalised for refusing to work outside normal working hours; and
- A duty to respect another's right to disconnect.
The Code is not legally binding but can be used in evidence against an employer in relevant employment related claims. However, there are no specific sanctions for employers should they breach the Code.
What might we see in the UK?
Media reports are suggesting that the Government is considering the introduction of a Code of Practice, so more akin to the Irish rather than Belgian model. There would be no freestanding right for workers to take employers to an employment tribunal should they breach the Code, but a failure to follow it could result in increased compensation when quantifying a related claim.
Whatever approach is followed, if the right to switch off is to be effective it will need to be pliable enough to fit the significantly varying needs of different businesses, sectors and industries. We can expect a consultation, possibly with a draft Code, and final implementation not before 2025 and quite possibly thereafter. It is a topic that is of significant interest for both employers and workers, and we will keep you updated on the introduction of this right as it progresses.
