How Would a ‘Right to Disconnect’ Clause in the Employment Bill Work?

One of the positive aspects of a 15-month lockdown has been the fact that many employees have now successfully shown to their employers that they are able to work from home. The initial fears of employees binge-watching box sets of Game of Thrones in their pyjamas all day have proved to be unfounded.

Despite a perception that the whole country was working from home in the first lockdown, an Office for National Statistics survey published in July 2020 showed that, of the 46.4% of people in employment who were working from home in April 2020, 86% were doing so as a result of the pandemic. Although 34.4% worked fewer hours than usual, 30.3% were working more hours.

There have been many anecdotal reports of employees being burned out and stressed. In some cases, this was due to an inability to set clear boundaries between working and homelife and the temptation to just ‘have a quick look’ at the inbox before going to bed. However, other causes have been as a result of managers and colleagues sending emails and expecting a response – or scheduling calls and Zoom meetings – out of hours and at weekends.

In Europe, France introduced legislation allowing employees to disconnect outside the business’s core hours and not suffer a detriment (e.g. to pay rises or promotions) for doing so. Their code came into effect on 1 January 2017 and was intended to stop employers from encroaching on family. An annual negotiation between employer and employees takes place about where the boundaries lie. Italy followed in 2017 and Spain in 2018. However, German lawmakers have not followed the same path but instead tried to tackle the issue by reaching an agreement with the large employers and using technology to enforce it. This includes putting in place software which prevents certain categories of employee from accessing company emails on their smartphones between certain hours.

There have been many anecdotal reports of employees being burned out and stressed.

In April this year, Ireland implemented a Right to Disconnect Code. Under this code, all employees whether home-working or office -based have the right to not routinely work outside normal working hours (appreciating that sometimes it might be necessary); not be subjected to a detriment for refusing to deal with work out of hours; and a duty to respect another employee’s right to disconnect. The code does not specify what ‘normal working hours’ are. The code also addresses the issues of doing work in different time zones and asks employers to manage expectations that their staff doing international business will only reply to emails during their own working day. It recommends training for managers to spot those not obeying the rules.

So, with the UK lagging behind putting in place safeguards for overworked employees, the calls for a Right to Disconnect clause to be included in the Employment Bill – due out later this year – remain louder than ever. Just this month the trade union Prospect asked the Government to legislate to ban out-of-hours emails from bosses and for a legally binding Right to Disconnect.

Some argue that this is not strictly necessary, as there is already legislation in place to protect employees. The Working Time Regulations put a limit on the working week, but we know that many employees are asked to opt out and many in managerial roles are not considered to be bound by these limits anyway. In any event, the issue is not necessarily the number of hours being worked, but the timing of those hours. If a manager is choosing to home-school and play golf during the daytime but then do all of their work at night, why should their direct reports have to be answering emails or sitting in on Zoom calls late into the night?

The issue is not necessarily the number of hours being worked, but the timing of those hours.

Employees might argue that not preventing managers from demanding answers or calls late at night contravenes an employer’s obligation to provide a safe place of work, enshrined in the Health and Safety at Work Act 1974. But realistically, is an aspiring young employee desperate to make a good impression going to raise their head above the parapet and make that claim? The first a business will know is when they leave or fall seriously ill and then it is too late. This is certainly the view that the Irish Government took when it implemented their code, which is there to supplement existing laws on working hours and safe places of work.

It may well be that employees who have been successfully working from home for over a year may feel that a return to the office will set some boundaries to their working day, and so employers planning to downsize and reduce their office space might find that demand for those returning is higher than they think.

Is legislation the answer? Probably, but faced with a shrinking talent pool and potential employees being much more focussed on work-life balance, employers are also going to have to lead the way with their own policies to attract the staff that they want.

These policies must be applied consistently from the top downwards to be a success. There is no real excuse when simple technology can assist a manager eager to commit their thoughts and questions down in an email and get it out as quickly as possible. Use the delay function in Outlook (options/delay delivery) – then the creative juices can flow at 2 AM while ensuring that the email is delivered within working hours.

There also needs to be an education process for managers to understand that emails arriving late, or demands for late calls, can be seen as bullying and giving off the impression of a manager not in control of their own workload. How many times when an email popped into an inbox at midnight has your first thought been “someone is having a breakdown”? Far from impressing the recipient, generally the view is completely the opposite, but immature managers (sometimes at very senior level) lack this self-awareness and it is all about education.

Employers could go further and disable the email system between certain hours, but this is likely to increase stress levels rather than decrease them. After all, those distracted during the day when their children or pets are unwell may want to catch up on work out of hours – this is a personal choice, so long as they are not expecting input from others at that time. A simple monitoring of emails passing out of hours will soon highlight those who are not abiding by the rules. Although they may switch to WhatsApp or texts from their personal mobiles to avoid detection, having in place an anonymous reporting process will soon unearth them and the policy should spell out the sanctions.

These policies must be applied consistently from the top downwards to be a success.

There is also the tricky problem of dealing in a different time zone. Businesses will be reluctant to refuse to deal with those in the USA other than on their terms, because their competitors will. But many firms employ staff specifically to work the hours that suit their international clients and allow them time off during the day – employers need to start being creative.

Whether a Right to Disconnect clause will be included in the Employment Bill, expected this year, is yet to be seen. But clause or no clause, educating leaders on healthy working practices that create a positive workplace culture and a safe place to work should be a given. A positive culture that is inspired from the top rather than just by legal policy will nurture a more productive workforce – one that is happier, more motivated and much more energised.

Beverley Sunderland, Director

Crossland Employment Solicitors

Address: 99 Park Drive, Milton Park, Abingdon, Oxon, OX14 4RY

Tel: +44 (0)123 584 1506

Email: beverley@crosslandsolicitors.com

Website: crosslandsolicitors.com

Crossland Employment Solicitors is a UK-based firm that specialises in employment law. Their team of experts advises businesses and individuals in all aspects of employment law, calling upon more than 85 years of combined experience to guide their clients.

Beverley Sunderland established Crossland in March 2008. Top-ranked in Chambers’ Guide and boasting Elite status in Legal 500, she draws on more than 30 years of experience in law and as a commercial director for a PLC. She is also an experienced advocate in both the Employment Tribunal and the Employment Appeal Tribunal, and has taken cases as far as the Court of Appeal when necessary.