Considering the right to switch off

September 19, 2024

As we highlighted in our May 2024 post, at the start of the summer the European Commission concluded a consultation on the "right to disconnect". The results of that consultation are yet to be published, but the issue is now on the UK government's agenda following the Labour Party's commitment to introduce a new "right to switch off" as part of its Plan to Make Work Pay. With Downing Street reiterating the government's plans to introduce a right to switch off in the UK and commenting that this new right would likely follow the approach seen in other countries, discussions have rekindled regarding the varying approaches to such a right around the world.

What is the right to disconnect?

A right to disconnect allows employees to switch off from work outside normal working hours, subject to any prior agreement to the contrary. While often the right will not prevent people from being contacted outside working hours, it allows them to ignore these communications without fear of being punished for doing so.

The hope is that such a right will empower workers to refuse unreasonable out-of-hours work contact, thus enabling a better work/life balance. In doing this, the right also allows employers to benefit from better rested employees, who will be less likely to face burn-out or leave the organisation.

Approach to the right to disconnect internationally

The right to disconnect has been implemented in a number of countries since 2017 when French employees were given the legal right not to answer emails outside certain hours. Introduced for companies with more than 50 workers, the French approach requires a "charter of good conduct" to be agreed, setting out the hours when staff are not supposed to send or answer emails. Companies which fail to implement such a charter could, in theory, face a fine of up to €3,750, with up to one year's imprisonment for the senior managers concerned.

Similar rights to disconnect have been implemented since then in places such as Spain, Portugal, Belgium and Ireland.

In looking to bring this right to the UK, the government has so far indicated that it would likely follow the approach taken in both Belgium and Ireland.

Introduced in April 2021, Ireland's Workplace Relations Commission code of practice sets out best practice and practical guidance on the right to disconnect. Under this, employees have a right to disengage from work and work-related communications outside normal working hours. The guidance consists of three main components which explain that employees have:

• a right not to routinely work outside normal working hours;
• a right not to be penalised for refusing to do so; and
• a duty to respect another person's right to disconnect.

Practices not aligned with this code will not constitute an offence themselves, but the code is admissible before a court when considering other claims.

The Belgian right to disconnect was introduced in April 2023 and requires employers with at least 20 employees to implement it by way of a company-level collective agreement or the employer's internal works rules. Any such agreement must cover, as a minimum, practical ways employees can exercise this right; instructions on the use of communication devices to ensure rest periods, leave and private life are respected; and training on the use of substantial communications and the risks of excessive connection.

Most recently, the right to disconnect has come into effect in Australia, giving staff the right not to reply to communication outside their normal working hours unless this would be unreasonable. Disputes over what is considered reasonable should initially be resolved internally but, where this is not possible, Australia's Fair Work Commission can step in to order an employer to stop contacting its employees after hours or to order an employee to reply.

Right to disconnect in the UK

At present, there are no detailed plans for a right to disconnect to be introduced in the UK. It was not specifically mentioned in the King's Speech, although it is anticipated that it may form part of the new Employment Rights Bill which was featured. Past its mention in the government's Plan to Make Work Pay, ministers have commented that they are looking at right-to-switch-off policies in other countries as guidance and have indicated that, if this right were to be introduced, this could be done through a code of practice. Similarly to France and Belgium, this code may create a framework for employers to agree a policy with their employees around when it is and is not acceptable to initiate contact outside normal working hours.

However, the government recognises that any policy could not be "one size fits all". Business needs vary and employees have different roles, and these factors would need to be taken into account. In particular, the disproportionate impact policies of this kind may have on smaller businesses is a large consideration in how any such right should be implemented.

Penalisation for failure to follow the right also seems to be crucial. Debate about this in the UK seems to suggest that the likely consequences for breach would be similar to those for failure to follow the Acas guidance on disciplinary and grievance procedures. That would give us a similar situation as in Ireland, where breach of the relevant code allows for an uplift to any award made in another claim rather than constituting a claim on its own. It is likely that there would be consultation before any right were introduced.