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Joe has left the building!

The debate about the right for workers to disconnect from work is back on the agenda.

Portugal increases workers’ rights

Following in the footsteps of France, Italy and Spain, Portugal has introduced legislation to protect workers’ rights to have a work life balance and in particular disconnect from work.

Portuguese employers will only be able to contact staff outside working hours in exceptional circumstances. Workers will also benefit from a significant level of additional protection. Any extra costs associated with homeworking such as insurance and internet bills will be borne by the employer. Parents with young children will be able to work from home without prior agreement from their employer.

Is there a basis for us following in Portugal’s footsteps?

Autonomy the independent thinktank that looks at today’s changing workplace published a paper “The Right to Disconnect” earlier this year to consider this issue, which predominately arises from homeworking during the pandemic. Its study concluded that the pandemic has given rise to a significant amount of hidden overtime, negatively affecting workers’ mental health and a disproportionate number of working women. These findings led to a proposal that the bedrock of our employment law, the Employment Rights Act 1996, be amended.

Under any new law, Autonomy proposes that employers would be unable to require workers to work, monitor or respond to work-related communications outside working hours. Any sanction imposed on a worker for refusing to work, would allow them to bring a claim in the employment tribunal. Industry sectors that could demonstrate this arrangement would not be feasible in light of the nature of their operations would be exempt.

Do we need to do better?

The Portuguese model and Autonomy’s report would suggest that we need to do better when it comes to protecting workers’ rights as there is currently no specific legislation in place to address the issues Autonomy identified. However, the laws already in place to protect workers cannot be ignored.

Our legislation restricts the number of hours a worker can work to 48 hours per week in the absence of an opt out, and there is provision for rest breaks during the course of the working day and week. Likewise, employers are under a duty to ensure that the system of working is safe, which includes protecting workers’ mental and physical wellbeing; any risk assessments used to demonstrate the system is safe must include consideration of the hours culture and how this would impact on workers’ health. Working parents also have the right to request flexible working, use the dependent care leave provisions in emergencies and request parental leave if time away from the business is required. From day one, employers must be transparent about working hours by confirming the hours and days to be worked, whether the working time will vary and if so, how. Workers may also be able to claim tax relief for expenses

The current raft of legislation although not specifically focused on the right to disconnect and homeworking, does go some way to protect the rights and wellbeing of workers.

Is further legislation the solution?

Any legislation will only be successful if it balances the rights of the workers with the need of an organisation to run an effective and financially viable operation. A ridged one size fits all approach is unlikely to achieve the right balance. Certain industry sectors and roles will never be able to operate in a right to disconnect culture. Legislation is also likely to prevent workers having the freedom to choose when and how they work. Research recently undertaken by Suffolk University has highlighted that taking away a worker’s choice may cause more stress and anxiety; something the right to disconnect laws in other countries has sought to alleviate.

Organisational culture may be a better place to start!

One school of thought is that legislation is not the answer in the UK given there are so many variable when it comes to running a business; instead, employers should be looking at their own working hours culture to identify if there is an issue and if so, how this can be addressed. Such a review may identify that the business is not as well run as it could be. Multinational companies such Lidl, Volkswagen and Siemens in Belgium and Germany appear to have already taken the lead in this regard by introducing their own rules to suit their operations but providing protection for their workers.

What does the future hold?

There appears to be no legislation on the horizon making the right to disconnect a legal right. While the momentum that has been gathering appears to be in Europe, the right appears to be achieving some consideration in the US and Canada. So to some degree, it is possible that your business if it is part of an international operation or does business overseas may well find that it will need to adjust its operations to reflect the fact in some circumstances personnel will have disconnected.

It is still important to remember that the right to disconnect is in part about managing wellbeing and having a good work life balance. While there is currently no law mandating the right to disconnect, workers can still challenge a long-working hours culture under our current legislation. Employers are still at risk of a variety of different legal claims such as discrimination complaints, constructive unfair dismissal, breach of the working-time legislation or personal injury claims.

To minimise the risk of any legal challenge, employers as a minimum should identify if there is a long-working hours culture and if so, look at ways where possible to reduce the impact this may have on its workers. A good place to start is the health and safety risk assessment, which should address the issue of mental wellbeing and not just the risk of physical injury; measures should be introduced if any risks are identified.

FG Solicitors are experts in all areas of Employment Law and HR. Please feel free to call us on 0808 172 9322 for a no obligation discussion.

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This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.

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