For employees, there are many perceived benefits to working from home, however one significant drawback is the potential erosion of the boundary between work and home life. This can result in employees feeling unable to disconnect from work, leading to burnout, declining productivity, higher work-related stress and other attendant health issues, which can cost employers dearly.
Stress-related absences are an increasing burden on the UK economy. For example, a recent report by Deloitte LLP revealed that the cost to employers in 2023 of poor employee mental health was £51bn, with presenteeism (where people work in spite of illness and not to their full ability) costing employers £24bn per year.
This has led to Labour’s proposed introduction of a “Right to Switch Off”. Versions of such a right are already in force in many other countries (including Canada, France, Spain, Italy, Portugal and Australia), and Labour now appears poised to implement this manifesto pledge in the UK. It is hoped that, by setting firmer boundaries around core working hours for employers and employees, the economic waste caused by poor mental health (the burden of which falls on employers), may be reduced.
What might the right look like?
It is not yet certain what form the right to switch off (the ‘Right’) will take, however indications suggest that it will not be enshrined in law. Instead, employers will likely be encouraged to incorporate the Right into their working practices through the introduction of new codes of practice.
The Government has yet to provide details on the precise content of the Right, however there are two likely scenarios: a “soft” right which permits employees to ignore work-related communications outside of their normal working hours; or a “hard” option which both allows employees to ignore work communications after the end of the working day, and which penalises employers who persist in contacting employees out of hours.
Such “hard” policies are already in place in other jurisdictions. For example, British firm Rentokil Initial plc was fined €60,000 by a French court in 2021 for failing to respect the right to disconnect of an employee based in the country.
What is clear at this stage is that the Right will not be a “one size fits all”. Instead, a collaborative and flexible approach will likely be adopted, encouraging employers and employees to work together to dictate what out-of-hours contact will be permissible in their particular business circumstances. For instance, emergency services workers on call will likely need to remain available to be contacted out of hours; but in other sectors such as financial and legal services, ‘switching off’ entirely may not be feasible due to the nature of the business and the demands of international clients.
Employers will therefore have to consider the extent to which the practical needs of their business may be adaptable to, or could be affected by, the incorporation of the Right into their working practices.
What should employers do now?
Employers should start thinking about how the Right may affect their business needs and culture. Employers may consider whether contracts of employment should be amended to clarify the hours that are regarded as “core working hours” (in contrast to protected hours when employees are entitled to disconnect), in order to ensure business continuity and to protect their brand and reputation; for example, ensuring that international clients are not left without contact outside of the core hours. Employers may wish to consider mandating higher levels of office working, to ensure that the productivity of core hours are maximised and to minimise the risk of excess out of hours contact with employees. In addition, for employers in public or heavily unionised sectors, the introduction and content of a right to disconnect policy will probably require consultation with the recognised trade unions for affected workers.
HR teams can prepare by discussing employee preferences and the potential approaches available to the business. They should consult with employees at all levels of seniority, especially those with flexible working patterns. This is important because any policy would need to be seen to be fair and consistent in application.
Whilst employers will need to remain focussed on their business needs when the form of the Right is announced, it can be hoped that, if thoughtfully and collaboratively implemented, the right to disconnect may boost employee health and productivity, leading to better returns for employers.
This article was written for our quarterly Employment law newsletter, IN CASE. Click here to be added to the mailing list, or click here to read the Summer 2024 issue.
