The Labour Party has promised UK workers a new code of conduct for employers that will include a right to switch off, effectively restricting the ability of employers to contact staff outside of working hours. But just how might that right work and what challenges might UK employers face?
A right to switch off or disconnect is not new. It is a right all French employees have enjoyed since 2017, and by employees in Ireland, Belgium, Italy and Spain since 2021. It gathered greater UK media interest in the depths of the 2021 pandemic when working from home felt for some like living at work.
The Labour Party’s proposals form part of a new proposed code of conduct for employers that include the right to flexible working from day one. It hopes, if elected to govern the country, these measures will create flexibility that will ease tightness in the labour markets and encourage people to take jobs in sectors that are experiencing shortages. It hopes these measures will ensure people can ‘build a family life’ as well as work in ‘good jobs’.
Shadow Secretary of State for Business, Energy and Industrial Strategy Jonathan Reynolds MP admitted in an interview with Times Radio that the proposals might not be driven forward via legislation, but in the first instance as a voluntary code of conduct.
But, in a post-Covid world, where working patterns have been irreversibly changed, how might such a right be received and work?
Our close neighbours in Ireland perhaps offer the best insight. Its code that enshrines the right to disconnect focuses on three points:
- A right for individuals to not have to routinely work outside their normal hours.
- A right to not be penalised for refusing to attend to work matters outside normal hours.
- A duty to respect another’s right to disconnect.
Its code does foresee legitimate situations where it may be necessary to contact employees outside of working hours and respects the rights of individuals to choose the hours they work.
It is clear that a ‘one size fits all’ approach is unlikely to work with a right to switch off, but more to encourage employers to think before they act and to discourage a habit of employees working excessive hours often unpaid.
It appears that a future Labour government recognises this and may not go as far, at least in the first instance, of enshrining in law such a right in the UK, adopting instead a voluntary approach. It has promised, however, to keep a watchful eye on its take-up and has not removed the promise of legislation entirely.
There are many good reasons why employers might want to respect the home lives of their employees. Tired and overworked staff tend not to be the most productive, accompanied by low morale and high attrition rates.
Employers have a legal responsibility for the physical and mental health and well-being of their staff. That cannot be ignored and can leave employers exposed to tribunal claims. It is a theme we have explored here Putting anxiety to rest – Mental Health Awareness Week 2023 – Bishop & Sewell – Law Firm (bishopandsewell.co.uk
This is not just about getting the law right. There is a compelling business case. Many businesses these days are unable to compete on salary alone and a strong employer brand is key – one that stands them apart from their competitors and peers.
A right to switch off on its own will not solve the current challenges facing employers, but it will, alongside other measures an employer can adopt, perhaps make them the employer of choice, attracting and retaining the talent that businesses need. Recognising the wellbeing of a workforce can only be a good thing.
Flexibility on both sides will be important to make this right work. Sometimes employers will need to speak to a member of staff outside of normal working hours and post Covid many employees choose to work irregular hours. One thing is for certain, we are not working in the way we were before.
Contact our Employment team
Rhian Radia is a Partner and Head of the Employment team. For initial advice or to arrange a meeting with one of our Employment team, please email email@example.com or call on 020 7631 4141
The above is accurate as at 19 May 2023. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.