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Communication Employment Contract Employment Law Employment Rights Act 2025 HR Lousha Reynolds Offer of Employment

What does the reduction of the qualifying period mean for fixed-term contracts?

Typewriter with the word 'Contract' typed on a piece of paper

When employers think about the Employment Rights Act 2025, much of the attention has understandably focused on the reduction in the qualifying period for unfair dismissal and the proposed removal of the statutory cap on compensation.

However, one area that has received far less attention is the impact these changes are likely to have on fixed-term contracts.

For many organisations, fixed-term contracts have traditionally provided a relatively low-risk way of engaging employees for projects, maternity or other family leave cover or seasonal demand. From January 2027, however, employers will need to rethink their approach.

Why does the change matter?

At present, an employee whose fixed-term contract expires is treated in law as having been dismissed. This is the case even if the employee knew that their employment was going to be for a fixed, temporary period. However, because employees currently need two years’ service to bring an ordinary unfair dismissal claim, the majority of fixed-term contracts end before that threshold is reached, meaning that relatively few fixed-term employees had sufficient service to challenge the dismissal.

The reduction of the qualifying period to six months changes that position dramatically.

From 1 January 2027, a far greater proportion of employees on fixed-term contracts will qualify for unfair dismissal protection before their contract comes to an end. Combined with the proposed removal of the cap on compensatory awards, employers who simply allow contracts to expire without careful planning could face a much greater litigation risk than they do today.

In practical terms, what does this mean?

It means that where the fixed-term employee has 6 months’ service, employers can no longer bring a fixed-term contract to an end by serving notice, as many employers have been doing whilst the qualifying period has been 2 years (as there was no risk of an unfair dismissal claim).

In the same way as in any dismissal where the employee has requisite service to bring an unfair dismissal claim, the employer will need to establish:

  • the principal reason for the dismissal;
  • that the reason falls within one of the potentially fair statutory categories (capability, conduct, redundancy, illegality or some other substantial reason (SOSR); and
  • that dismissal was reasonable, including that an appropriate procedure was followed.

The principal reason for the dismissal will often be related to the fixed-term contract coming to an end, for example because funding has ended, a project has completed or in cases where a contract is used to cover maternity or other family leave, where the parent returns to work.

In most cases, it will be appropriate for the employer to rely on either some other substantial reason or redundancy as the fair reason for the dismissal, but the correct reason will depend on why the fixed-term contract was created and why the employee’s services are no longer required.

Fair reasons for dismissal

Maternity/family leave cover

Most employers are familiar with the fact that employees returning from maternity, adoption or shared parental leave have statutory rights to return to work. What is less widely appreciated is that the law also contains specific provisions dealing with employees who are recruited purely to provide temporary cover during that period of leave.

Section 106 of the Employment Rights Act 1996 recognises that, in these circumstances, an employer may need to bring the replacement employee’s employment to an end when the substantive postholder returns. Provided certain conditions are met, that dismissal will be treated as having a fair reason, as required in unfair dismissal law.

To rely on this provision, employers must ensure that, at the point of recruitment, the temporary employee is informed in writing that their employment will end when the employee they are covering returns from maternity, adoption or shared parental leave and that the dismissal is taking place to give work to the returning employee.

Generally, employers have not been doing this- they haven’t needed to because the qualifying period for unfair dismissal has been longer than the period of maternity/family leave cover and the length of the fixed-term contract, but as explained above, that will all change when the qualifying period reduces.

Importantly, these statutory provisions do not remove the need to follow a fair process. They establish only a potentially fair reason for dismissal. As with any dismissal, the employer must still act reasonably in all the circumstances. This is likely to include considering whether there are any suitable alternative vacancies available and light touch consultation with the employee about ways to avoid the dismissal before any decision is made.

So in summary, when recruiting maternity or other parental leave cover, ensure the temporary nature of the role is clearly explained from the outset, confirm this in writing and remember that, even where section 106 applies, a fair process remains essential.

Redundancy

Dismissing a fixed-term employee by reason of redundancy will constitute a fair reason for dismissal where the fixed-term employee was engaged to undertake work that has now ceased or reduced, for example where a particular project has been completed, seasonal demand has reduced, or external funding for the role has ended.

However, employers should not assume that the fixed-term employee can automatically be selected for redundancy simply because their contract is due to expire. An employer will still be required to show that they have followed a fair selection process, meaning that where permanent and fixed-term employees undertake the same or similar work, the employer may need to consider whether they should be included within the same selection pool and scored against a set of objective criteria.

As a fair process also involves warning the employee of the risk of redundancy as early as possible, it is important to make clear at the start of the fixed-term contract that the work to be done is for a limited period, the contract is due to end when the work is done and that there is no guarantee of another role when it ends.

Some other substantial reason (SOSR dismissal)

A dismissal for some other substantial reason is a catch-all dismissal, but may be particularly helpful for ending fixed-term contracts fairly. Case law makes clear that if the contract was for a specific and genuine purpose, which has now come to an end, an employer may be able to fairly rely on an SOSR dismissal.

The employer would need to show that the reason was substantial and capable of justifying the dismissal of an employee holding that particular role.

There will still need to be a fair procedure followed, and we would recommend at least one meeting, as well as an opportunity to apply for alternative roles.

The Countdown to 2027

As always, the key to staying ahead of the changes is preparation.

For that reason and ahead of the changes, we would recommend that you:

  1. Consider fixed-term contracts that are shorter than 6 months in duration, as there will be no impact as a result of the change to the qualifying period. However, in many roles, the disruption to the business will outweigh the benefit of avoiding the legal risk.
  2. Review your use of fixed-term contracts and update documentation, making expressly clear within offer letters and contracts the intended purpose, duration and the circumstances in which the fixed-term contract will come to an end.
  3. Consider your current fixed-term contracts. Are there any that you wish to bring to an end before the change in the law on 1 January 2027?
  4. For those fixed-term contracts that will expire on or after 1 January 2027, ensure that you have identified the process that you will follow in plenty of time before the expiry date.
  5. Document expiry dates for fixed-term contracts and consider implementing an approvals process for renewals and extensions in an attempt to reduce the risk.
  6. Raise awareness so managers are aware of the changes and the implications.

We appreciate that this is a complex area to navigate, so please do get in touch if you need any further advice.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Communication Confidentiality Data Protection Act 2018 Disciplinary Employment Law Employment Rights Act 2025 GDPR Grievance Lousha Reynolds

AI in Disciplinary & Grievance Processes: A growing challenge for employers

An iPhone with ChatGPT's LLM open on the screen, asking the question "What can I help with?"

Artificial intelligence (AI) has rapidly become part of everyday working life. Whether employees are using ChatGPT to draft emails, employers are introducing AI-powered workplace tools, or managers are relying on AI to improve productivity, its influence on the employment relationship is growing.

One area where this is becoming increasingly apparent is within disciplinary and grievance processes.

It is now common to receive grievances, disciplinary responses and appeal letters that have clearly been generated, or heavily assisted, by AI. Whilst AI can undoubtedly help employees articulate their concerns more clearly, it also presents several practical and legal challenges for employers.

The reality is that AI-generated submissions are here to stay. The key question for HR professionals and business owners is not whether employees should use AI, but how organisations should respond effectively when they do.

The challenges

Length over clarity

One of the most obvious features of AI-generated grievances is their length.

Rather than setting out the key issues succinctly, AI often produces documents that are repetitive, overly detailed and lacking a clear structure. What could have been a straightforward complaint quickly becomes several pages of information, making it much harder (and more time-consuming!) to identify the real issues that require investigation.

Legal language without accuracy

AI also tends to produce documents that sound highly legalistic.

Instead of simply explaining the facts, grievances often contain references to statutory provisions, legal terminology and Employment Tribunal case law. Unfortunately, public AI tools are well known for occasionally inventing cases or misapplying genuine legal authorities. This can make documents appear more persuasive than they actually are and distract attention from the factual issues that genuinely need to be addressed.

Escalated allegations

AI is designed to generate persuasive writing and, in doing so, can unintentionally exaggerate concerns.

A workplace disagreement can suddenly be described using terminology such as “harassment”, “victimisation”, or “systemic discrimination” where the employee may simply be trying to explain that relationships have broken down. Whilst every allegation must be considered, employers should concentrate on establishing the facts rather than becoming distracted by dramatic or emotive language.

Unrealistic expectations

Anyone who has used AI will probably have noticed that it tends to reinforce the user’s position.

If an employee asks whether their grievance is likely to succeed or whether they have a strong tribunal claim, AI frequently provides an optimistic assessment. This can create unrealistic expectations before the employer has even started investigating the issues, making it more difficult to manage the process and achieve an acceptable outcome.

Data protection risks

The biggest concern is one that often goes unnoticed.

Employees using public AI platforms may upload confidential company information or personal data relating to colleagues to obtain assistance with drafting their grievance or disciplinary response. That creates obvious confidentiality and data protection risks which employers should not overlook (see UK GDPR and the Data Protection Act 2018).

5 top tips for dealing with AI-generated grievances and disciplinary responses

  1. Focus on prevention

Formal grievances are expensive, time-consuming and often damage working relationships.

The best approach is to encourage informal resolution wherever appropriate. Grievance policies should actively signpost employees towards discussing concerns informally with their manager/an appropriate manager or HR before commencing formal procedures.

Managers should also be trained and empowered to deal with workplace concerns at an early stage rather than feeling that every issue automatically requires a formal process.

  1. Don’t respond line by line

When faced with a lengthy AI-generated grievance or disciplinary response, it is tempting to answer every single point in writing. In practice, this often creates more work than it solves.

Detailed written responses can legitimise irrelevant arguments and often result in another equally lengthy AI-generated reply. Instead, focus on identifying the central issues that require investigation and ensure those are addressed thoroughly.

  1. Prioritise conversations over correspondence

One of the most effective ways to deal with AI-generated documents is to talk to the employee.

Whether in person or remotely, asking employees to explain their concerns in their own words often cuts through pages of unnecessary text and helps identify what the dispute is really about.

If their explanation differs from the written grievance or disciplinary response, clarify the position during the meeting by referring back to the document. This ensures that important issues are not missed whilst avoiding arguments later that particular points were ignored.

The same principle applies throughout the process. Where clarification is needed, a short conversation is often far more productive than an email exchange that generates increasingly lengthy AI-assisted responses.

  1. Protect confidential information

Employers should now consider implementing a clear AI policy if they have not already done so.

The policy should explain when AI can be used, prohibit employees from uploading confidential company information or colleagues’ personal data into public AI platforms, and remind employees that they remain responsible for the accuracy of any information submitted on their behalf.

It is also sensible to include a paragraph within disciplinary and grievance procedures (and in fact any procedures related to a formal process) that cover the use of AI. This could then be drawn to their attention during the process if the use of AI is clear.

  1. Train your managers

Finally, managers should understand both the benefits and the limitations of AI. This should include guidance on recognising AI-generated documents, understanding that AI may misstate legal principles or cite inaccurate case law, and focusing investigations on establishing the underlying facts rather than becoming overwhelmed by lengthy legalistic submissions. This could be built into manager training, whether as a stand-alone or as part of training on disciplinaries and grievances.

Looking ahead 

Although AI and LLMs (Large Language Models) are currently having the biggest impact on disciplinary and grievance procedures, this is only the beginning.

We are already seeing AI-assisted correspondence in flexible working requests, redundancy consultations, capability processes, settlement negotiations and in ET claims. As AI becomes embedded within everyday working life, employers will need to adapt their processes accordingly.

The key is not to be intimidated by AI-generated correspondence. Focus on the facts, encourage conversations rather than lengthy written exchanges, ensure managers are appropriately trained and put clear boundaries in place around the safe use of AI.

Those organisations that adapt now will be best placed to deal with the opportunities, and the challenges, that AI continues to bring to the workplace.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Communication Conflict Dispute Management Employment Law

Respect in the workplace goes both ways

View of the City of London at sunset

Happy New Year.

I am in the middle of preparing a training session on ‘respect in the workplace’. Naturally in that session we will be discussing what ‘respect’ means and looks like on a daily basis for the delegates.

I have been reflecting on the trend I have been seeing where certain individuals behaviours are overstepping the mark. For example:

  • They might have a grievance against the organisation but write quite toxic emails to the manager concerned.
  • These might be sent at night, early hours of the morning or at weekends or when they know a manager is on holiday.
  • Typically these emails demand a somewhat immediate response from the recipient.
  • The behaviour gets worse if the person perceives that the manager has not responded fast enough.
  • The sender is undoubtedly dumping all their emotions about something on the recipient.
  • The emails can be above average in length. A recent example of this was a manager having a meeting with someone following normal management processes on a Friday afternoon. Cue a 26 page ‘grievance’ the next day, a Saturday.

All of this might fall within what Acas calls ‘extreme difficult behaviour’. All of those who work in this space have become inured to having the odd one – we used to joke about that one personnel file that outpaced all others.

However, this is becoming more normalised. I think this is because of the general themes outside of work of expressing your views on social media, a more polarised world and people post pandemic being wrapped up in only thinking about themselves.

What is clear is this is not healthy for the recipient of this. One manager I have been liaising with mentioned her hair falling out as a result of dealing with ‘that’ person. We all get triggered when we see the name of the person who is doing this flash on our phones/inboxes.

Upward bullying is a thing. I’ve even witnessed people doing this to judges! What we are not great at is setting boundaries about this and putting some controls in place. I am struggling with this as much as you. What can we do?

The things I have thought of are:

  • Have a short policy on expectations around answering emails so it is clear what out of hours rules and KPIs on response times are.
  • Communicate to staff eg:- in newsletters that you expect all communications to be respectful and polite.
  • Be brave enough to call out the person being toxic – this becomes a performance management issue. You would be saying you are entitled to raise XYZ issue but not in the manner that you have.
  • Include in email footers the organisation policy that any email which is not respectful in tone will not be dealt with and then if people send problematic correspondence draw their attention to why they are not receiving a response.
  • Empower managers not to feel they have to put up with inappropriate behaviour – not encouraging cross grievances but saying it is OK to say when you are finding it hard to deal with something, speak out and we’ll agree a strategy.
  • Amend bullying policies specifically around this kind of behaviour – communicate that inappropriate emails won’t be tolerated
  • Write to warn people of the Protection from Harassment Act and that their behaviour could be tipping over into this.
  • Have a system of escalating upward bullying to a anti-bullying tsar who would step in and say disciplinary action could be taken if behaviour isn’t modified? Often the threat puts someone in their box.

Any other ideas?.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law

Knowledge November 2023

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Week 1

Covering the topic of ‘changing terms and conditions’, Week 1 of Knowledge November 2023 is now available to view:

https://mailchi.mp/b2caa2c0aa1b/welcome-to-knowledge-november-refreshing-law-15647912

Week 2

Week 2 of Knowledge November 2023 is now available to view. Last week we looked at the background and flexibility clauses. This week we consider:

  • Are variation clauses any help?

  • 3 ways to vary the contract

https://mailchi.mp/ff4161aa847c/welcome-to-knowledge-november-refreshing-law-15648052

Week 3

Last week we looked at the first two routes to a change of contract. In Week 3 of Knowledge November 2023 we will look at the third.

https://mailchi.mp/a85806429922/welcome-to-knowledge-november-refreshing-law-15648056

Week 4

So far in Knowledge November 2023, we have considered the main legal risks and routes to achieving a change but during this final week we look at how do we do it.

https://mailchi.mp/5ad6bae9bbba/welcome-to-knowledge-november-refreshing-law-15648060

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Collective Redundancy Communication Employment Law Employment Rights Act 1996 Redundancy Settlement Agreements Video

Video | Settlement Agreements — An employer’s contribution to fees

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the various issues around an employer’s contribution towards an employee’s legal fees when negotiating Settlement Agreements.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Communication Employment Contract Employment Law HR Offer of Employment Recruitment Video

Video | Offers vs contracts

Legal contract papers

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing a case she read about recently which relates to an issue that she does see cropping up from time to time around what has been offered at interview and in the initial offer letter versus what is in the contractual documentation later on.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Communication Confidentiality Disclosure Employment Law Procedural Fairness Without Prejudice

Changing what you say in protected conversations

View of the City of London at sunset

From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked “without prejudice” believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.

The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the “without prejudice” letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.

The Tribunal agreed that the “without prejudice” letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked “without prejudice” and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employee’s contract unilaterally.

As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.

The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!

This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.

Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that it’s such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed – this leaves it uncertain.

Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.

You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.

Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked “without prejudice” and probably subject to a protected conversation.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Conflict COVID-19 Disciplinary Employment Law Grievance Investigations Return to Work Stress Victimisation

Why we might be seeing more conflict and mistakes

View of the City of London at sunset

You may have noticed some of the following since the pandemic:

• People getting more upset than “normal” over something relatively trivial.
• People having a very emotional reaction to something they are asked to do, for example, returning to the office.
• An increase in conflict in situations where previously this would have been less likely to happen and employees being less resilient.

There is a brain science explanation for all of this. We have at brain chemistry level, been living within an environment of constant and invisible threat for 18 months. During a situation of stress such as this, the limbic system goes into overdrive and more complex parts of our brain such as the prefrontal cortex are used less.

This all makes sense in an emergency: we need our brains to focus to enable us to deal with the threat. For example, I had somebody drive into the back to me recently at speed while I was stationary in the car. The limbic brain function enables you to calmly deal with the situation but in that state it becomes much harder for us to think rationally, deal with complicated decisions and we become error prone.

This might also explain why, if you are feeling that you are just trying to do something relatively straight forward that you have always done but for some reason it feels more challenging than previously. We overloaded the system. I always remember a junior doctor talking about how they coped with their very long shift working and all that their job brought with it but would burst into tears when they found that the toothpaste had run out. It’s a perfect illustration of the pressure on our system, suppressing the prefrontal cortex and yet reacting emotionally, losing our tempers more and being unable to talk ourselves down in the way we would normally.

Normally the prefrontal cortex is able to talk to the limbic system essentially telling it to calm down and behave more rationally but if we are stressed, tired or sick then that becomes more difficult. We know how exhausted everyone is saying they are, particularly those who have worked in the front line or who have had to step up in other ways to see their organisation through the last 18 months, we can see why normality is being impaired.

This is why everybody feels a bit on edge but can’t really articulate why – it is normal when you’ve survived some kind of disaster.

The brain is immensely adaptable and will figure its way through this phase. It can even be a good thing where people will grow as a result of the experience, with the majority returning to functioning as they did before and a small proportion effectively experiencing post-traumatic stress disorder. Researchers are even beginning to talk about the common outcome being long term resilience but for the meantime, what can we do?

We have to accept that a cohort of the workforce are feeling immense fatigue and have short levels of concentration or simply struggling to concentrate at all. We have to recognise when this is happening that it’s not necessarily a permanent state of affairs and that we need to provide support rather than go straight to performance managing out. It may even help to talk about this to get people to understand what is going on so that they accept their emotional state, rather than trying to fight against it. This reduces them being stressed about being stressed in the first place. It stops people dwelling and feeling increasingly negative. Dealing with what’s going on in a non-judgemental way can drag that prefrontal cortex back into the picture and give it a chance to quieten down the limbic system. If people are in a state of anxiety it can be quite easy to end up in a negative spiral where that becomes the dominant emotion.

When we are in a particular mental state we tend to dwell on the particular emotion that we are feeling and remember all of the other times that we have felt this way rather than all the other times when we haven’t felt this way. It may help people to understand that this is what happens and that dwelling on something more positive can help the brain chemistry.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Duty of Care Employment Law Health and Safety Health Conditions Mental Health Risk Assessment Stress

What to do when you’re worried about someone — Suicide awareness

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Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law Employment Rights Act 1996 Overtime Right to Work

The right to disconnect — Tread carefully

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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.

Anna Denton-Jones
Refreshing Law