As more and more of us feel that we are losing the ability to switch off from work and take an uninterrupted rest, which is of course required under the Working Time Regulations, more and more discussion is taking place about whether we need some kind of “right to disconnect”.

The French led the way in 2017, amending their Labour Code to include this right for employers with more than 50 people – their law requires the employer to negotiate with employee representatives to control the use of digital tools. Italy, Spain, Slovakia, Luxembourg, Netherlands and Germany have all followed suit with Ireland being the most recent addition. In Ireland their Code of Practice requires employers to have a policy in place which confirms that employees have a right not to work outside of normal working hours, that employers and colleagues should not routinely email or call outside of those working times and the employee should not be penalised for refusing to work during non-working hours.

Whilst that Code of Practice doesn’t have the force of law of in the sense that breaching it leads to a claim for damages, it could be used as a supporting argument when somebody is bringing a claim about something like breach of working time, health and safety legislation or bullying and harassment or plain old breach of the implied term of trust and confidence for a constructive dismissal.

You may have seen email footers that more routinely now set out the times in which somebody is likely to be contactable and/or answering their messages. More and more employers are carving time out in diaries when meetings cannot be timetabled and dictating that meetings should not be timetabled at unsociable hours, save in emergency circumstances.

Initially I took the view that employers in the UK should not be waiting for our Government to legislate, (the TUC has called for the Government to include something in the Employment Bill but there is no indication that they are thinking of it) and encouraging employers to incorporate something into their policies and procedures.

However, I also remember the days before the Blackberry when my desktop PC sat on my desk in the office and I was unable to deal with email correspondence if I wasn’t physically at my desk. I remember being given a small square to stick on the back of my hand by a colleague that I did some stress at work training with for a large employer. The square would change colour back to blue when your body chemistry changed and your body was full of the stress hormones, cortisol. As an experiment I kept this and placed it on my hand the next day that I was due in the office. I remember driving to work and monitoring the situation. During my commute to work, when I was beginning to think about work, the feedback was that I was not suffering from stress. However, as I approached the door and was using my door entry fob, that is when my stress levels rose, telling me that the anticipation of what I might find when I logged my computer on was stressful to me.

I approached my desk and duly logged on and my stress levels remained high until the time when I’d managed to see what was there and prioritise what was urgent and what else could take a bit longer to deal with. Once I had a handle on the situation, the colour of the square returned to normal.

When the ‘Blackberry’ was introduced (which is a form of mobile phone for those you who are too young to remember!), allowing me for the first time to have email on the go I remember thinking it was a positive thing and that now in the short moments that you might have waiting somewhere or when you have parked your car, you keep an eye on things, delete the rubbish and then arrive back at my desk ready to roll because I would know what things I needed to deal with and when. That’s many years ago now and I’ve still always thought that the ability to have your email follow you has actually been a positive thing on balance.

What is different now stems from a number of issues:

  1. The sheer volume of emails being sent. From employees being copied in on emails that they don’t need to be, to having email conversations with colleagues when actually a quick phone call would be much more efficient, those emails where people won’t let go of the conversation and so send another email…. The list goes on.
  2. Remembering email is just a tool – it is how we use it for good or ill that counts. What I am noticing is that the pandemic seems to have put everybody to a state of ‘high alert’ where everything is urgent and everybody expects a response now and timelines have become unmanageable and isn’t it that that is the issue rather than being connected?

Any employer considering how they deal with mental health issues and wellbeing particularly as we move towards more hybrid forms of working, will need to be putting in place guidance around employees not feeling that they need to work outside their set hours but the key underlying issue is workload and I would suggest that it’s workloads in general that need to be being looked at rather than focusing solely on something like the right to disconnect. It will only ever be part of the jigsaw puzzle.

On 21 January 2021, the European Parliament approved a Resolution asking the Commission to introduce a Directive to establish the minimum requirements for remote work across the EU which would include the ‘right to disconnect’. That would require employers to establish a detailed written statement setting out arrangements for switching off digital tools for work purposes; set out systems for measuring working time; encourage training and awareness of the right to disconnect in the workplace and make sure that workers don’t suffer adverse treatment or dismissal for having exercised their right. This will undoubtedly reinforce things across Europe and employees are naturally going to start to gravitate towards those organisations that they feel are looking after them and shunning those who they feel are abusing their private lives by intruding on them.

We are likely to see rapid change in this area but I would caution employers to look at the whole picture and not just this narrow aspect. A poll conducted by Owl Labs and reported in People Management found that lots of employers are considering implementing shorter working weeks with others concerned that focusing on core working hours could be to the detriment of those who have to work in a flexible way for caring reasons including parents. This is a topic I will return to.

Refreshing Law Ltd
1 July 2021