For many, the flexibility of working from home has been the silver lining to the coronavirus pandemic - less time spent commuting and travelling has meant employees have freed up extra time in their days, and they have been able to spend more time with their families. However, the flipside is that employees are finding it harder than ever to switch off, with their work inboxes always just within reach. The increased reliance on digital technologies in the workplace has strengthened the “always on” culture and has further blurred work-life boundaries. Poorly managed home-working arrangements can contribute to hidden overtime and working time issues, as well as mental health and wellbeing issues. According to the Chartered Institute of Personnel and Development (“CIPD”), 32% of UK workers felt that having remote access to the workplace means they can’t switch off in their personal time and 40% said they actively checked their work mobile or emails at least five times a day outside of working hours. It is therefore no surprise that governments around the world are facing pressure to intervene and legislate, to allow employees the opportunity to disconnect. In this article, we look more closely at the “right to disconnect” and the ways in which employers can help their staff avoid burnout.
In general terms, the right to disconnect refers to the rights of employees to disconnect from work without penalty or detriment, and not to receive or answer work emails, calls or messages outside of their normal working hours.
Many countries have already introduced some form of right to disconnect for employees. In 2017, France famously enacted a “right to disconnect” law, requiring companies with more than 50 employees to negotiate agreements with unions, allowing employees to disconnect from work technology after working hours. Interestingly, although there is no legal right to disconnect in Germany, many employers have made moves at company-level to protect workers’ ability to log off. At Volkswagen, for example, non-management employees reportedly cannot access their work email on their mobile phones between 6:15 pm and 7:00 am. Other German companies, such as Allianz and Bayer, reportedly have similar policies in place.
Closer to home, Ireland is among the first countries to introduce a code specifically addressing the right to disconnect in a post-COVID remote-working environment. In April of this year, Ireland introduced a new code of practice which sets out three main elements of the right to disconnect:
While there is currently no right to disconnect under English law, the Government is facing increasing pressure to implement one. In its March 2021 manifesto, the Trades Union Congress (“TUC”) calls for a statutory right for employees and workers to disconnect from work, to create “communication-free” time in their lives. In addition, trade union Prospect wants the Government to enact new protections to enable workers to disconnect, whilst recognising some of the difficulties with establishing a rigid “system cut-off” right to disconnect. Somewhat surprisingly, the 2021 Queen’s Speech did not mention the much-anticipated Employment Bill, which was expected to contain a number of measures to extend and protect workers’ rights, amid fears that they might be watered down after the UK left the EU. Although the pandemic has been blamed for the delay, it perhaps signals that the protection and expansion of worker rights is not currently a key priority for the Government, as it gears up for a post-pandemic recovery. This potentially means that the introduction of a right to disconnect may not be imminent, although this subject is likely to remain relevant and at the top of the agenda for many employers’ groups and unions in the current climate.
At an EU level, the European Parliament made recommendations to the European Commission earlier this year and proposed a Directive which would oblige member states to establish detailed arrangements to enable employees to exercise their right to disconnect, including practical ways to disconnect from digital tools and to provide sanctions in the event of a breach. Whilst the UK is of course no longer a member of the EU, multinational employers may want to take a consistent approach when rolling out right to disconnect policies. An important part of ensuring the success of a right to disconnect policy is to ensure there is respect, understanding and buy-in from management and colleagues across different time zones and countries – it may therefore make sense to implement such a policy “across the board” rather than in a piecemeal manner. Of course, this in itself may present challenges when navigating different legal landscapes, and a broad-brush “one-size-fits-all” approach is unlikely to be effective.
There has been much debate around the benefits of a right to disconnect, and in practice, implementation of such a right may not be as straightforward or beneficial as it may immediately seem. For some, particularly those with childcare responsibilities, the ability to work outside of traditional working hours provides some much-needed additional flexibility and preventing those employees from working beyond a specific cut-off point may actually be more of a hindrance than a benefit. In addition, for employees with regional or international roles, there may be a real business need for work outside of the traditional 9 to 5 in order to effectively carry out responsibilities. Some also fear that preventing employees from accessing emails after hours might have the undesirable effect of pressuring those employees to cram excessive amounts of work into the working day, without taking adequate rest breaks.
The principles underpinning the right to disconnect centre around protecting employee health, safety and well-being. Until further guidance is published or legislation is enacted, employers may want to consider the interim steps below with a view to preventing employee burnout:
Although the right to disconnect may not become law in the UK any time soon, it is clear that employee burnout is a significant risk in many industries. Employee burnout can lead to a decline in productivity as well as employee retention issues, as overworked employees look elsewhere for a more balanced workload. Clearly, it is in the interests of employers to ensure that employees are not working excessive hours to the detriment of their health and safety, and/or contrary to the WTR. Even in the absence of a formal right to disconnect, there are plenty of other measures that employers can and should be taking in order to avoid health and safety and talent attrition risks.