Employers and employees alike embraced the benefits associated with remote working during the pandemic. However remote working has also seen employees expected to undertake tasks and communicate with their employers outside of their working hours, described as a recipe for a ‘burn out Britain’[1].
This increase in ‘out of hours’ communications have seen many employees struggling to disconnect or prohibited from doing so by their employers contacting them outside of working hours. It was reported that 3.8 million people in the UK did unpaid overtime in 2023.[2]
To help remedy this, the Labour government proposed in their pre-election publication ‘Make Work Pay’[3] to introduce ‘the right to switch off’.
The right to ‘switch off’ was first discussed in Labour’s 2021 Green Paper[4], promising to empower employees to disconnect from their job outside of working hours. This is with the aim of preventing employees’ homes from becoming 24/7 offices and disrupting an essential work-life balance. It is also expected for the plans to extend to cover employees’ annual leave, preventing employers from requiring work related tasks to be carried out during annual leave.
The Labour government has heavily suggested that introducing the ‘right to switch off’ will improve productivity. However, there has been no supporting evidence from countries who have already implemented the right to suggest this will be the case.
One of the main concerns is how employees practicing their ‘right to switch off’ will affect business productivity as a whole. Businesses are already adhering to flexible working requests, allowing changes to employees working patterns. If this right is enforced, it may prevent employees from contacting their colleagues for support if they opt to work past 5pm. This would therefore threaten productivity of others who are not enforcing this right.
Additionally, there may be a business requirement to contact an employee outside of the working hours, for example in cases where strict deadlines have been imposed. Not being able to contact employees outside of the working hours could therefore prevent businesses from effectively functioning and achieving business aims.
Whilst it was not specifically mentioned in the King’s Speech nor is it likely to be included with the anticipated ‘Employment Rights Bill’, it falls within Labour’s commitment to fostering a better deal for the working person. A recommendation is expected to be written into the codes of practices for businesses, rather than enshrined within law.
The Labour government may look to models adopted by Ireland and Belgium for guidance when implementing the rule. Much like the model implemented by the Irish government, if a code of practice is put in place this will not be legally binding. However, it is likely that this can be relied on as evidence in claims for breaches of employment law rights.
France
France was the first country to introduce the right to disconnect in 2017, providing all employees with the right to disconnect from work emails and communications which fall outside of their regular working hours. Companies with more than 50 employees are required to negotiate an agreement on the right with the relevant trade unions. It is also illegal for an employer to reprimand a worker for not responding to out-of-hours calls.
Ireland
Ireland’s right to disconnect is established in a voluntary code of practice, enforcing a right to maintain clear boundaries between work and leisure times. The right also prevents penalisation from occurring on occasions where employees refuse to work outside of their normal working hours.
Belgium
The Belgium government passed legislation to enshrine the right to switch off. Legislation prevents civil servants from being contacted by other employees outside of their normal working hours. The right also extended to preventing employees from being subjected to a detriment for not communicating outside of work hours.
For private sector workers, legislation provides the requirement for employers to have a written document on the right to disconnect.
Should you wish to discuss any of the issues raised in this article, please contact Robert Forsyth.
[1] Paul Nowak – General secretary of the Trades Union Congress: “Gruelling” work intensity a growing problem in “burnt out Britain”, new TUC report shows | TUC
[2] UK workers put in £26 billion worth of unpaid overtime during the last year - TUC analysis: UK workers put in £26 billion worth of unpaid overtime during the last year - TUC analysis | TUC
[3] Make Work Pay: https://labour.org.uk/wp-content/uploads/2024/05/LABOURS-PLAN-TO-MAKE-WORK-PAY.pdf
[4] Employment Rights Green Paper: Employment-Rights-Green-Paper.pdf (labour.org.uk)
