Unplugged: Could a ‘right to disconnect’ from work make its way to the UK?

As we have seen from the recent civil unrest in France in response to the proposed retirement age hike, French workers are not shy about promoting boundaries between their work and personal lives. Perhaps nothing exemplifies this better than the ‘right to disconnect’ which was solidified in French legislation in 2016.

Introduced to ensure ‘observance of rest time and leave as well as of personal and family life’, the ‘right to disconnect’ requires companies with more than 50 workers to negotiate annually with those workers and to create policies which set out the hours in which staff are not obliged to send or answer work communications.

The concept of the right was born as a result of a 2004 judgment of the Cour de Cassation (France’s highest court) which found that an employee’s failure to answer his work phone out of his regular working hours was not a valid reason to dismiss him. A 2018 decision of the same court (this time applying the ‘right to disconnect’ legislation) ruled that an employee is entitled to extra pay whenever they are asked to be available to take work-related phone calls outside of their regular working hours. The Cour fined the employer in that case €60,000 for their failure to do so.

Since 2016, Italy, Spain, Belgium, Ireland, and most recently Portugal, have followed suit and implemented their own variations of a right to disconnect. For example, in Portugal, employers have a duty to refrain from contacting workers during their rest period (whether they work from home or not), except in exceptional circumstances. If they breach this duty, they could be fined nearly €10,000. Looking again to France, the French Ministry of Labour recently clarified that all rules regarding work time and the right to disconnect apply equally to ‘telework’ as they do a traditional model, providing additional security to workers against the backdrop of home working.

This is particularly interesting in a post-pandemic world where a large proportion of office-based staff work from home at least some of the time. This style of work has undoubtedly blurred the lines between work and personal life, and may leave workers feeling ‘switched on’ beyond their contracted hours, whether there is a formal obligation to be so or not. Reports from the countries that have already implemented a right to disconnect suggest that there can be significant mental and physical strain caused by these ‘out-of-hours intrusions’ which could impact upon the workforce as a whole. Indeed, as we discussed in our previous blog, 17 million working days were lost in due to work-related stress, depression or anxiety in the UK last year.

It has been reported that last year alone, 3.5m British workers contributed a total of £26bn worth of free labour in the form of unpaid overtime. So could the UK be next?

In a campaign led by Angela Rayner, Labour has announced its plans for a ‘right to switch off’ if the party wins power at the next general election. Rayner stated that ‘constant emails and calls outside of work’ are harmful and should not be the norm. Labour’s intention would be to look to countries who have already successfully implemented the right to inform how something similar could work in practice in the UK. However, there are a number of ‘what if’s’ to surmount before we can consider this a real possibility.

That being the case, what can employers do in the meantime to ensure their workers have suitable boundaries between their work and home lives? Employers may wish to consider:

• Having (or updating) clear policies which set out expectations on working hours, working from home, hybrid working, and use of work-issued devices
• Providing training on spotting the signs and managing the impact of work-related stress and burnout
• Managing reply timescale expectations for others by including a worker’s working days or hours in their email sign-off

As with any workplace policy of this nature where there is no incumbent legislation, it would always be possible for the employer to look to bring in a “right to disconnect” policy of its own, even if only for the purposes of encouraging good disciplines and setting appropriate expectations.

If you or your organisation would benefit from discussing any of the recommendations in this blog, please contact our specialist employment law team.