Member Article

‘The right to disconnect’ was a popular topic during 2021 and provides for an interesting discussion - should there be a legal right in the UK for employees to disconnect from their workplace?

The phrase which may bring joy to an employee’s ears but potentially not so much to those of an employer is the ‘right to disconnect’. Put simply, a right to disconnect is a legal right for an employee to log off on time and to not respond to any emails or calls relating to work outside of their normal working hours. Other EU countries, such as France and Portugal, have recently considered a similar right.

Why is a right to disconnect needed?

Research conducted last year by Autonomy thinktank found that the pandemic had caused ‘a hidden epidemic of overtime’ by employees, especially those working from home. The line between work and home has been blurred resulting in many employees working beyond their normal working hours. In some cases, this has now become the norm and an expectation by their employer.

The research commented that the amount of overtime worked by employees during the pandemic (due to working from home) was negatively effecting employee mental health and wellbeing. In addition, the Health And Safety Executive (HSE) published a report in December 2021 which found that stress, anxiety and depression caused half of all work-related illness last year. It revealed that 850,000 employees suffered from a new case of work-related illness in 2020/2021 and 451,000 people reported that the illness was stress, anxiety or depression. The report details that the main causes for such illness were workload, lack of support and changes at work. The pandemic certainly has a lot to answer for!

How would a right to disconnect work?

The research by Autonomy thinktank, proposes amendments to the Employment Rights Act 1996 to formally introduce a legal right to disconnect in the UK. The proposed amendments are intended to prevent employers from requiring or expecting employees to monitor or respond to any work-related communications or carry out any work, outside of their normal working hours. Employees would have the recourse of bringing an employment tribunal claim if their employer subjected them to a detriment, such as dismissal or a disciplinary process, for failing to work outside of their agreed working hours.

Interestingly the proposals detail that an exemption should apply to those industries where it wouldn’t be feasible for employers to comply with the new requirements. An example of a sector that may struggle with the formal right to disconnect is the care sector where there may be a genuine need to contact employees outside of their contracted hours.

Is a right to disconnect the answer?

The right to disconnect has been the subject of a recent campaign by Prospect the union who found in 2021 that 59% of employees supported the introduction of a right to disconnect. It was also found that new remote workers were 66% in favour. But would a right to disconnect actually solve or improve employee mental health and wellbeing?

Arguably in principal it would create strong boundaries between work and home but some employees may put pressure on themselves to voluntarily work outside of their normal working hours, for example if they felt that their performance may be negatively affected by logging off on time or if they simply wanted to finish a piece of work they were in the middle of.

Some employees may wish to work flexibly to suit childcare arrangements or other commitments and so would want the ability to work outside of core working hours. Would employers have to get written permission from the employees each time to show that it was voluntary work and not enforced by the employer? Is it fair that some employers within certain industries would be exempt from implementing the right? What stops exempt employers taking advantage of the right?

The UK is likely still a little way off having a formal right to disconnect in place. While no formal right exists, practically there are steps employers could take now to assist employee mental health and put in place boundaries between work and home. These include:

• talking to the workforce and understanding how they feel about their current balance between work and home life. Employers should discuss with employees whether the balance has changed or been impacted by the pandemic, whether positively or negatively. Every workforce is a different shape and size so it is important for employers to remember that there is no one size fits all solution.
• training or refreshing managers on how to have open conservations and keep in touch with their teams, especially where teams are now working remotely again.

Another hot topic entwined with the right to disconnect is flexible working and hybrid working so employers should consider how flexible working works in practice for their organisation and whether it needs further shaping within the business to improve the balance between home and work life for employees.

For now, the ‘right to disconnect’ is a distant dream for some employees but there are plenty of actions employers could take now to minimise the need (and want by employees) for such a formal right.