Flexible working = always working?

There’s no doubt that the flexibility offered by technology, coupled with the shift to remote working during the pandemic, has led to fundamental changes in the way we work. While there are plenty of positives associated with flexible working – both for employers and employees – this can be at the expense of blurred boundaries between work and home life, and an ‘always on’ culture, which can lead to hidden overtime, negative health outcomes and increased risk of stress/burnout.

Perhaps as a result of this, work-life balance is becoming increasingly important to employees, with a recent report by Amex Trendex finding that the majority of workers would now choose a better work-life balance over higher pay.[1]

It’s therefore not surprising, particularly in light of global trends, that the Labour party has promised to introduce a ‘right to switch off’ if it comes into power,[2] so that working from home does not become ‘homes turning into 24/7 offices’.[3] This new right would mean workers can disconnect from work, and not be contacted by their employer, outside of working hours.

There are already safeguards in place in the UK to protect the working hours and health and safety of employees – limits on working hours, rest breaks and holidays are examples of these. However, in recent years there has been a general international trend towards countries going one step further, by legally protecting employees’ right to switch off from work. Many countries including France, Spain, Portugal and Ireland have all introduced slightly different versions of the right to disconnect. Indeed, even within the past couple of months, Australia has passed a Bill allowing employees to refuse to monitor, read or respond to contact/attempted contact from their employer outside of their working hours unless the refusal is unreasonable. The right varies from country to country, but in many locations, employers of a certain size are required to have a written policy document regarding their employees’ right to disconnect.

The intentions behind introducing the right to disconnect are positive, as they seek to ensure workers enjoy a healthier work-life balance and avoid working when they are not obliged (or paid) to do so. However, there is a question mark over whether a ‘right to switch off’ would actually have the desired impact. For many workers, particularly those with children or caring responsibilities, flexible hours and the ability to log off during standard hours, and log in after hours, is extremely valuable and a blanket ‘right to disconnect’ may not work in practice in the way in which it was intended. Flexibility at work is now increasingly common, and the changes introduced by the new flexible working regulations (which come into force on 6 April 2024), will not only mean that more employees will be eligible to make requests, but those who are eligible will be able to make more requests. As such, flexibility in the workplace is only going to increase, and it remains to be seen how this will interact with any ‘right to disconnect’. There are also potential operational issues which may crop up in teams that work internationally across different time zones and need to flex their working hours to operate effectively. As such, any right to disconnect would need to be qualified and flexible if it is to work in practice.

It’s not clear how Labour’s right to switch off would be implemented – i.e. whether by legislation, voluntary codes of conduct etc. – nor how it will be enforced, but how the right is governed will dictate the actions needed by employers. However, many employers may already be looking at introducing a right to disconnect ahead/regardless of any changes which may be introduced by Labour (if it comes into power). For employers who are looking at better protecting their employees’ work-life balance, they could consider:

• Speaking to staff to understand how often out of hours working occurs, and the reasons behind it, so the issues raised can be addressed.
• Amending current policies, or drafting a new policy, which sets clear expectations on how the company will protect work-life balance and respect an employee’s right to switch off.
• Ensure that flexibility is built in – e.g. by setting out the circumstances in which contact outside of working hours can be made and how any right to disconnect will apply to those who do not follow standard working hours.
• Amending email footers or out-of-office replies to clarify that emails may be sent outside of normal working hours, but this does not necessitate an urgent response.
• Signing up to the Mindful Business Charter.
• Running training sessions for staff and managers on the importance of switching off from work, and the related mental health benefits.

Given the increasing importance that workers are placing on work-life balance, it’s clear that creating a workplace culture which is flexible and respects that balance should be a priority if employers want to retain staff, regardless of whether there is any change in the legal position.

If you’d like to discuss any of the issues raised in this article, please contact Robert Forsyth, who would be delighted to assist.

[1] Amex Trendex 2024 Trends (americanexpress.com)

[2] See here to review Labour’s ‘New Deal for Working People’.

[3] New-Deal-for-Working-People-Green-Paper.pdf (labour.org.uk)