Even before the pandemic, there was evidence illustrating the negative impact that constant connectivity and ‘always on’ work cultures have on employees’ physical and mental wellbeing. This has been amplified during the rise of home working since March 2020, with one study suggesting employees in the UK were working an additional two hours per day on average.

While the  use of technology can enable flexibility and contribute to improved work-life balance, it may also have the opposite effect, if used to supplement or extend the working day.

The current remit of the UK Government’s task force on flexible working is to develop policies to support employers and workers to adapt to new ways of working (including ‘hybrid’ working). Elsewhere in Europe, governments have taken action to strengthen protections around working time, through the introduction so called Right-to-Disconnect or Right to Rest regulation. Yet in the UK context there is no new working time regulation to support such working arrangements.  What lessons should the UK learn from approaches taken elsewhere?

Limitations of current UK law on working time

Fundamental to legal interpretations of working time is the distinction made between rest periods and working time—the latter is commonly interpreted as time when an employee is at the employer’s disposal. However, increases in the digitalisation of work, coupled with trends in flexible working, have blurred these distinctions, meaning that many employees routinely work outside of working hours, either at their own discretion, or at their employer’s behest.

Nonetheless, one of the arguments made against the introduction of legislation around right-to-disconnect is that existing working time legislation already regulates working time and rest periods. Advocates of such thinking argue that a right-to-disconnect simply embellishes existing legislation, which is already rigid and restrictive. Some suggest that organisations can directly address out-of-hours connectivity through increasing awareness of the impact on employee well-being, and by re-emphasising management’s obligations around working time.

While organisational policies usually appear well intentioned, in our view they fail to overcome the inherent imbalance of power in the employment relationship.

New technologies facilitate always-on work cultures where workers are at increased risk of stress and negative impacts on their wellbeing (see also Dragano and Lunau, 2020; Scaramuzzino and Barfoed, 2021). Remote and hybrid working will potentially contribute further to difficulties in maintaining boundaries between work and leisure time. Both of these factors point to the need for a right-to-disconnect to enhance workers’ wellbeing and work life balance.

The right to disconnect in Europe

Eurofound have classified the provisions addressing right-to-disconnect in different EU Member States, from nations who have taken a ‘balanced promote-protect’ approach (for example through introducing specific regulations) to those where ‘no specific legislation’ exists.

France was the first European country to introduce a formal right-to-disconnect in 2017. Here, employers with at least fifty workers must negotiate agreements with unions to allow their employees to disconnect from work technologies after hours. Where parties fail to reach an agreement, the employer must establish a right-to-disconnect charter on after-hours technology use, decided upon by the social and economic committee within the organisation. Quality of life at work, the use of digital tools, respect for rest breaks and annual leave are expected to be addressed within such charters. While generally welcomed by policy makers, the French approach has also been criticised for being vague, lacking extension to organisations with under eleven employees where the legislation does not apply.

More recently, in April 2021, the Irish government introduced a Statutory Code of Practice for Employers and Employees on the Right to Disconnect. The code covers three fundamental facets: the right of an employee not to have to routinely perform work outside their normal working hours; the right not to be penalised for refusing to attend to work matters outside of normal working hours; and the duty to respect another person’s right-to-disconnect.

As in the French case, its introduction has been broadly welcomed, however the efficacy and enforceability of a right-to-disconnect through the Irish code of practice has already been questioned. Some argue that changes made on a legislative footing, rather than a guidance-only code of practice would have been more impactful. Yet, while failure to follow a code is not an offence, breaches of a code of practice are admissible in evidence and can be considered in court hearings. Such codes are thus appealing to advocates of voluntarism and pluralist approaches. But is that sufficient, or would legislation be better?

It has been argued the Irish approach does not sufficiently deal with issues relating to contemporary working arrangements such as agile and flexible working, and that the guidance lacks nuance by failing to distinguish or account for different types of employment. Additionally, it has been asserted that the guidance inappropriately delegates regulation of the right to disconnect to organisations.

More recently still, Portugal has introduced ‘right to rest’ laws, which ban managers from contacting staff out of hours. Significantly, the Portuguese approach includes the potential for firms to be fined for breaches in organisations with more than ten employees.

Which, if any, route is appropriate for the UK?

As right-to-disconnect initiatives are still relatively new, evidence of the impact on employee health and well-being, work–life balance, and productivity is limited; however, according to Eurofund, social partners’ experiences suggest that positive changes in company culture are taking place following the introduction of right-to-disconnect approaches.

The initiatives outlined above go some way towards addressing concerns raised by both employers and employees. However, within the UK context, in the absence of strong workplace representation or bargaining coverage, codes of practice may be of limited impact if not placed on a legislative footing or if they do not provide a route of redress or enforceability.

Workers’ right-to-disconnect should not be a privilege extended only to those in particular types of employment. A solution with both broad reach, and enforceability is required.

Without legislative backing, and meaningful consequences for employers who don’t comply, voluntary codes of practice may fail to protect workers’ right-to-disconnect—workers will only be spared the stress of being constantly contactable at the whim of their employers’ good will.

Negotiations over ‘working time’ have always been at the core of the employment relationship, with organised labour and legislation being fundamental in achieving positive change for workers. Now is not the time to relegate legislation in favour of employer-led policies on the issue of working time. A meaningful right-to-disconnect should be available to all members of the workforce.

Watch our recent Digit Debates panel discussion: Do workers need a legal right to disconnect?