Labour’s ‘Plan to Make Work Pay’ included a proposed ‘right to disconnect’. This would allow workers the right to not be contacted outwith working hours.
This did not feature as part of the Employment Rights Bill that is currently making its way through the House of Commons. The government has stated that this would come in to force by way of statutory code. Consultation on the contents of this code will commence this year.
The most common example of a statutory code is the ACAS code of practice. The content of the code is not legislative. If you breach the code, it is not the same as breaking the law. However, it is something that judges in tribunals will consider and if it has been breached it leads to the claimant receiving an uplift in compensation. It is envisaged this code on the right to disconnect may work in a similar way.
Is this right necessary? Research by the CIPD in the last few years has indicated 1 in 4 of those responding to the UK wide survey checked their emails outside of working hours at least five times a day.
Globally, some companies are taking steps to combat this issue. In Germany, in 2012, Volkswagen introduced a computer system that would block emails from being sent in the last half hour of an employee’s working day until half an hour before their next shift.
Other countries have attempted to commit this right into law. France legislated for a right to disconnect in 2017. This stated that all businesses with more than 50 employees were required to negotiate with their employees on the expectation for out of hours communication. A Supreme Court case against the French arm of British company Rentokil dealt with this issue. Rentokil were ordered to pay €60,000 to a former employee as compensation for time he spent on call: leaving his phone on and answering calls.
Ireland has dealt with this issue in the same way as the UK government is proposing to, by use of statutory codes. The right to disconnect is split into three distinct rights: the right not to routinely work outwith normal hours, a right not to be punished for refusing to do so and a duty to respect others’ right to disconnect.
For employers, it may be worth assessing the cultural norms surrounding out of work contact and if this fits with the company’s needs. If managers are sending emails out late at night it may be that junior colleagues feel there is an expectation to reply, and ironing out these issues may avoid problems further down the line.
If you have any questions on any of the issues raised in this article, please contact Alan Sutherland.