The Right to Disconnect: A potential reality in the ‘new normal’ or an impossible change for the UK?

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Partner, Julie Bann, question whether the ‘new normal’ of working from home is at odds with the legal right to disconnect.

COVID-19 has forced workers in the UK to adjust to a ‘new normal’. While working from home does bring advantages, the ‘new normal’ can often mean working longer hours, being under pressure to always be available and an increasingly blurred work-life boundary.

Recently, the EU Parliament has passed a legislative initiative for the ‘right to disconnect’ to be an EU-wide fundamental right. We consider how a right to disconnect could work in practice and whether it should be adopted for UK workers.

The Right to Disconnect

The right to disconnect can simply be understood as a worker’s right to turn off their work computer and phone at the end of the day and there to be no expectation to turn it on until their next day of work. The EU agency Eurofound defines the right to disconnect as a:

“worker’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails or other messages, during non-work hours.”

COVID-19 has led to a radical change to the number of people working from home and whilst for many it reduced their commute to a ‘journey’ from bed to desk, the working day has become longer. Recent reporting suggests that on a practical level the duration of the working week in the UK has increased by almost 25%.

The increased hours and less clearly defined boundary between work and personal life can lead to some workers feeling increasingly anxious and depressed. COVID-19 has helped to elevate the right to disconnect as a pressing issue for workers and a potential solution to managing the blurred boundary of work and personal life.

France and the EU

France has extensive employment legislation which offers substantial protection to workers and provides an illustration of how the right to disconnect could be incorporated into legislation in other countries. Legislation introduced in 2017 requires companies with more than 50 employees to draw up a charter of good conduct, setting out the hours when employees could disengage with work, effectively giving them the right to log off.

Currently, there is no EU or UK law which gives workers the right to disconnect. However, MEPs have called on the Commission to pass legislation so that the right to disconnect could become an EU-wide fundamental right.

The absence of a specific right to disconnect in UK legislation does not mean there are no safeguards in place. The EU-derived Working Time Regulations (WTR), which remains applicable in the UK after Brexit, grants workers a set of rights concerning annual leave, working time and rest period.

WTR Refresher

The WTR places several obligations on employers, which may be familiar, but it is worth emphasising their effect in light of the changing working practices in the COVID-19 era.

The WTR include some exceptions, but a general overview of the key rules for employers is set out below:

  • 48 Hour Week: the employer must take all reasonable steps to ensure that each worker’s average working time does not exceed 48 hours per week.
  • Night Work: the employer must take all reasonable steps to ensure that night workers’ normal hours of work do not exceed 8 hours per day on average. There are also further rules relating to night working.
  • Rest Breaks: the employers must give workers “adequate” rest breaks where the pattern of work is such as to put their health and safety at risk. The adequate rest breaks include an 11 hours’ uninterrupted rest per day, 24 hours’ uninterrupted rest per week and a rest break of 20 minutes when working more than 6 hours per day.
  • Holiday: employers must allow workers 5.6 weeks’ paid holiday each year (equivalent to 28 days for a full-time worker).

Certain WTR rights can be waived if the worker signs an opt out agreement.

Brexit and Workers Rights

The UK has now left the EU and can diverge from EU employment law (subject to appropriate rebalancing measures). However, there has been little indication that the UK Government is planning to introduce a right to disconnect.

It was recently reported that worker protections previously enshrined in EU law such as the 48-hour week provided by the WTR may be abolished. Such indications do not present an optimistic outlook for a right to disconnect being introduced into UK legislation.

Comment

It is unlikely that the UK will introduce legislation on the right to disconnect but UK employers remain responsible for maintaining a healthy workplace and for taking reasonable steps to ensure that employees work within the safe boundaries set by the WTR.

Action Points

There is not a single solution which will be appropriate for all employers. A company-wide freeze on out-of-hours emails could have catastrophic results for certain businesses.

A first step is to be clear what is expected of your employees during this ‘new normal’. Communication on the importance of taking breaks, refraining from checking emails outside of work hours and maintaining, as far as possible, a clear divide between work and personal life to support mental well-being.

Employers can also refer their employees to various resources to help them maintain a clearer work-life boundary and encourage healthy leisure time activities.

While you do not want to tie your employees up in an excessive number of internal meetings and put more pressure on their working day, employers do need to ensure that managers have regular check in calls with their team to assess work allocation and reiterate the message about work/life balance.

Further actions may include monitoring the number of emails sent out of work hours and specifically raising concerns with regular out of hours workers. It may be that they are having to work out of hours due to childcare needs so no assumptions should be made but an open discussion will show that you are aware of the pressures.

Ensure adequate cover is in place when a worker is on annual leave so that the need to disturb the worker’s leave is minimised.

As we adjust to the ‘new normal’ the employers should adapt too and consider supporting their employees’ efforts to meaningfully disconnect from work when they are not meant to be working.

Sharpe Pritchard has a number of experienced employment solicitors who can assist employers with complying with the latest employment regulations and best employment practices.

Please contact Julie Bann if you wish to discuss the implications of this article in more detail.

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