The right to switch off

Aware of the risks of stress, burnout and poor productivity, many countries have given employees a right to ‘switch off’ or disconnect. In their manifesto, the Labour party pledged to introduce a version for UK workers. 

 

What does this mean for employers? 

 

 

The right to disconnect concerns employees’ right not to communicate with work outside of working hours. The details vary by country. 

 

Some countries, like Portugal, prevent employers from contacting employees unless it is an emergency. Others, including Australia and Italy, allow communication but give employees the right to ignore them without consequences. Australia's law allows for the Fair Work Commission to order the employer to stop making contact after hours, or order the employee to reply, and fines those who don’t comply. 

 

Some put the responsibility on the employer, providing flexibility to tailor plans to each company. French companies with more than 50 workers will be obliged to draw up a charter of good conduct, setting out the hours when staff are not supposed to send or answer emails. In Belgium the law applies to companies with more than 20 staff, who must have policies about how they will respect the right to disconnect and offer training about the risks of excessive work. In Luxembourg, employers must have a scheme for helping workforce disconnect, such as blocking access to IT systems and training managers on the topic. 

 

Others include specific rules for remote workers, to help maintain the boundaries between work and home life. In Italy, remote contracts must also have clear start and finish times. In Slovakia remote workers can refuse to use work equipment such as mobiles and laptops during rest breaks - not just out of hours but during leave and even lunch breaks. 

 

Ireland has a code of practice giving employees the right not to routinely work outside of normal working hours and to refuse out-of-hours communication. However, as a code of practice this has less force than legislation. 

 

 

Labour’s “Make Work Pay” plan promised a model similar to those in Ireland (a code of practice) and Belgium (which gives companies flexibility to create their own policies). The focus seemed to be on employers creating – and then sticking to – practices that worked for their organisation. 

 

Plans shared with the media suggested that Acas would create a code of practice on the right to switch off. Employers aren’t legally obliged to follow such codes and employees cannot bring a standalone claim for failing to follow the code. Instead, it can be an aggravating factor alongside another claim, increasing compensations for the main legal claim. 

 

However, the Employment Rights Act does not include any mention of a right to switch off or disconnect, and reports suggest the government has dropped the right. 

 

 

Employees facing communication out of work may have options depending on their employment contract. 

 

If their employment contract only provides for normal working hours, an employee could reasonably refuse to deal with work matters outside of those hours. If they are disciplined for refusing, this could give them a claim for unfair dismissal or (if they resign because of the misuse of the disciplinary process) constructive dismissal. 

 

Even if the contract does provide for work outside of their normal hours, excessive demands may be a breach of trust and confidence, which could be grounds for constructive dismissal. 

 

If workers (especially those on low wages) are expected to do many extra hours without pay, this could take their pay below minimum wage. In such cases, the worker can recover backpay by making a claim at the employment tribunal or a complaint to HMRC. (Which route is best will depend on factors specific to the case, including whether the claim is within tribunal time limits). The employer could also face fines, bad publicity and even criminal proceedings. 

 

 

Even thought the right has been dropped, you should beware that contact out of hours can still risk claims. If you regularly contact staff out of hours, it might be sensible to check the terms of employment contracts and seek advice about potential issues.  

 

Encouraging staff to switch off during their personal time can help improve staff wellbeing and will put you ahead of other employers, helping attract and retain talented staff.