Should all employees have the right to disconnect?

Why the need to disconnect?

We have learned many lessons from the pandemic for our working lives but one thing that stands out is how flexible we can be, both as employees and employers. While flexibility is generally viewed as a good thing, especially for those with young families or caring responsibilities, this is not necessarily the case when taken to the extreme. 

During the various lockdowns, it has not been uncommon to receive an out of office explaining unusual working hours due to home-schooling or other childcare issues. However, what we perhaps overlooked was that these individuals were no longer working 9am-5pm but instead 5am-9pm, due to juggling work and children being home. As a result, the line between work and home life became blurred. Also, in the absence of being able to carry out our normal lives and do the things we took for granted, such as socialising and holidays, some people filled their time with working around the clock. This has led to all sorts of issues, from questions such as “should I be replying to an email received at 8pm the same evening – is this now expected?” to employees suffering from stress/ burnout and working longer hours that are unpaid.

What have other countries done?

Various countries are now looking to address the issue and one approach is to consider allowing employees the right to disconnect. This is not a new concept. France was the first country in Europe to introduce legislation in 2017 giving employees the right not to take calls or read work emails during their time off, including non-working hours and holidays. Italy and Spain have also legislated in this area and other countries are actively considering it. Earlier this year the European Parliament asked the Commission to introduce a Directive giving the right to disconnect.

The idea behind the right to disconnect is to reduce stress and ease the inevitable tension between a worker’s professional and personal life. Arguably France were ahead of times, as now more than ever we are recognising the need for employees’ non-working time and personal/ family life to be separate and respected. 

As a result of working practices and the pandemic, the Republic of Ireland introduced a Code of Practice in April 2021 giving employees the right to disconnect from work and not answer calls or emails outside of working hours. It includes a right not to be penalised for refusing to attend to work matters out of hours and a duty to respect another person’s right to disconnect. There is pressure from certain Unions for the UK to follow suit but there is a question mark over whether this could throw into the mix more problems than it provides a solution for.

What are the issues to consider?

What are normal working hours in today’s new world? 

When France introduced its legislation, employees were working in a much more structured pattern of set hours in an office environment. The reality is that most of us have not been doing this for the best part of two years. Inevitably, many employees now want the flexibility to perform their work to suit their personal circumstances and not to a set schedule. Ireland’s code does not define “working hours” and therefore this is up for agreement between employer and employee, which is perhaps a way of dealing with individual needs. However, having set working hours v non-working hours could mean that employers expect employees to be available on demand during those working hours, which takes away the flexibility some employee's desire. It is questionable whether the idea of disconnecting is compatible with the flexibility we now require.

Would this work for your business?

The very idea of employees being able to completely disconnect outside of working hours will strike fear in the hearts of many employers. It is the nature of certain industries that employees are expected to work outside of their normal working hours, for example, to service paying clients. Employment contracts of senior employees often dictate set working hours with the caveat that they will “work all other such hours as is necessary to perform their duties”. There is often an expectation that this is the norm and these employees are compensated with high salaries and bonuses for being available on this basis. For these individuals to now be permitted to log off at 5pm and to not be contactable could impact on businesses commercially and potentially lead to performance issues being raised with the employees concerned. 

How far do we go?

German vehicle-maker Daimler took a tougher stance on the right to disconnect in 2016 and set up an optional service for workers going on holiday. Instead of sending an out-of-office reply, they could opt to have all new emails automatically deleted. This approach is fraught with difficulty and it is hard to see how this would work in any client-facing industry without jeopardising client relationships. Also, many managers will want to send emails to an employee on holiday, not with the expectation that they reply or even read them while they are on holiday, but to keep them in the loop on a particular project or to remind them to discuss a new piece of work with them on their return.

Do we need to legislate in order to protect our employees?

Arguably our existing legislation provides employees with adequate protection, with the Working Time Regulations 1998 setting a maximum average weekly working limit of 48 hours, minimum annual leave and rest breaks. As employers you also have health and safety obligations and owe a duty of care to your employees to ensure that they are not placed under undue stress and pressure. 

Formalising a right to disconnect in legislation or a Code of Practice could be challenging for businesses and there are other ways to protect your workforce. Managers have a key role to play here and should receive appropriate training. They should: 

• Ensure they have regular meetings with their direct reports to check on workload and to encourage a dialogue so they can pick up any issues quickly and deal with them
• Remind employees of the need to take time away from work, ensure adequate cover when an employee is on holiday and remind them of the importance of a work/ life balance 
• Monitor how many emails are being sent outside of normal hours. If this is unusually high, they should have a conversation with the employee concerned and remind them that this is not expected. It could be there is a perfectly legitimate reason, such as childcare but picking it up with them demonstrates they are aware that they are potentially under pressure

Employers may need to wait until the pandemic subsides before deciding whether giving an employee an entrenched right to disconnect is really necessary or whether they can manage issues with internal policies.