Right to Disconnect

Article from the Financial News – Friday August 27th 2021

When the pandemic struck, many businesses were forced to remove staff from the office and set them up at home at short notice.

In the past 17 months, businesses have worked effectively with staff working from home. Productivity has increased, and staff have found that a more flexible working pattern has enabled a better work-life balance for many.

Now that home schooling has become a distant memory, we hear that parents, grandparents and carers are taking time to take their children to school. That is not something they will want to give up easily.

On the other hand, we know that working from home means that workers are never too far away from a workstation, even if they are fortunate enough to have room for a dedicated office-style space. Productivity may have increased and employers have gained an unexpected upturn in returns as a result, but at what cost?

Employees are working longer hours, and often feel they are available on demand. This has created a feeling that workers can never switch off, causing anxiety, exhaustion and, more worryingly, long-term psychological damage.

There are growing calls from trade unions for the UK to follow in Ireland’s recent footsteps to introduce a ‘right to disconnect’ clause in the forthcoming Employment Bill. Under the right to disconnect, employees in Ireland are entitled to switch off from work and not engage in digitally enabled communications outside their normal hours.

Calls for a similar clause in the UK have gained momentum in recent months. They could potentially have a detrimental impact on future flexible-working polices. While talks to introduce greater workers’ rights and allow people to switch off is a positive move for the UK, implementing any such changes now could be difficult.

The principle of the right to disconnect is a good one, and I believe that the UK should follow in Ireland’s footsteps. However, the timing needs to be right to work effectively. The pandemic has allowed companies and employees to realise the benefits of truly flexible working hours, which support colleagues working around their home responsibilities.

While some staff have benefited from this flexibility, clearly others have struggled to truly switch off after work. The right to disconnect is the right of an employee not to routinely work outside their normal hours, but over the last 12 months not everyone has worked ‘normal hours’.

Since July 2021, when Covid restrictions were lifted in England, employers have been able to start to plan for staff to return to the workplace. There is a mixed reaction from employees who have enjoyed many benefits of working from home. However, employers are weighing up those benefits against the long-term viability of a hybrid-working arrangement.

It is beyond doubt that Covid-19, for all the untold damage and distress and loss of lives caused, has also created some positives by opening up discussions in the workplace that have been avoided for many years.

Employers across the professional services sectors have been determined to adopt the attitude that if I can’t see you working at your desk, you are not productive or actively supporting the growth of the business. This attitude has created the long-hours culture and a fear of not being seen to be working hard and long. In recent months employers have seen staff shift away from that mindset and a determination to resist the old working pattern.

Being available on demand and the increase in hidden overtime has had a more significant impact on women, who are at greater risk of negative health impacts and mental distress, according to a report by the think-tank Autonomy.

We need to ensure that the right to disconnect is a serious proposition for debate by government, leading to obligations placed on employers to support a better balance of work and to avoid serious mental health damage and burn out. The proposal is that two amendments are made to the Employment Rights Act 1996; an employer should “not require an employed worker to monitor or respond to any work-related communications, or to carry out any work, outside the worker’s agreed working hours”.

The effect of applying these proposals would be significant in terms of a breach of these obligations – for those who do not opt out – in that the worker would have a right to pursue a claim at tribunal if employers persisted in breaching these rules.

However, the challenge with applying a right to disconnect just now is that employees are becoming accustomed to choosing different working hours every day, but the right to disconnect is likely to mean that this total flexibility will not be completely viable. If the provision does come in with immediate effect then it will likely mean that employers will need to be more prescriptive with their employees’ working hours for it to be applied effectively.

In my view, any such change as part of the Employment Bill should be deferred until at least late 2022 to allow employers and employees to determine the ‘new normal’ for their business.

Eileen Schofield is an employment law specialist and owner of Schofield and Associates.