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. 

 

 

We don’t currently have a right to switch off, but 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. 

 

 

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). Labour’s right will give “workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.” 

 

Further plans shared with the media suggest 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 will not be able to bring a standalone claim for contact out of work. Instead, such contact will be an aggravating factor alongside another claim, increasing compensations for the main legal claim. 

 

This will be helpful when out-of-hours contact is part of a bigger problem, such as discrimination or unfair dismissal. However, it may not help workers to challenge a toxic workplace or poor treatment that falls short of being illegal. 

 

In disputes solely about switching off from work, employees may still have to rely on unfair or constructive dismissal claims. Whether such claims are successful will depend on the terms of their contract and the reason for termination or resignation. 

 

Codes of practice have less legal bite than legislation, (though failure to follow a code can in some successful cases lead to an increase in compensation) so it is unlikely we’ll see drastic changes, such as overruling certain contract clauses. It seems that the focus will be on employers creating – and then sticking to – practices that work for their organisation. 

 

 

When the code of practice is announced, employers should begin to implement it into policies and train managers and staff. 

 

Just because employees won’t be able to make a standalone claim, you should not be complacent about this right. Good intentions aren’t always enough to avoid legal disputes, and even the best employers sometimes get it wrong. So, plan to avoid aggravating factors, just in case. 

 

Employers could also begin to consider ways to encourage staff to switch off during their personal time. Even if this is not required under the code, it will help improve staff wellbeing and will put you ahead of other employers, helping attract and retain talented staff.