Right to disconnect: should it happen in the UK?

Working from home has taken centre stage over the last two years. In many industry sectors, it has been necessitated by the pandemic and the restrictions on interaction and travel. It has also evolved to become the preferred way of working for vast numbers of office workers. 

It isn’t limited to office environments. In April 2020, 46.6% of people in employment did some work at home, primarily because of the pandemic (see Office for National Statistics: Coronavirus and homeworking in the UK: April 2020). Around one third of those working from home worked more hours than usual. Remote school teaching, unheard of before the summer of 2020, became widespread overnight. 

The benefits of this ability to work more flexibly were significant. It enabled businesses to continue to operate during national periods of lockdown and the increased use of technology allowed people to effectively stay connected to colleagues, customers, suppliers and networks. It means less time spent commuting and arguably greater productivity. 

The consequences of flexibility 

Has this agile new world of remote working presented a different, widespread problem for workers?  

Those that work from home are aided through advances in technology. There are so many ways to connect with colleagues; Teams, Skype, email, WhatsApp, phone calls, Facetime and various types of instant messaging, all of which are accessible on a mobile phone. Notifications signal receipt of messages and there is no need to have a laptop switched on. 

It has become difficult to escape from work.  

It becomes rather more sinister if you consider how some employees are monitored at home, through technology and various types of reporting.  

When at work, workers leave to go home. The boundaries are clear. When your place of work is your home and your hours are not tightly defined, these boundaries become almost impossible to determine.  

In many ways, this has adversely impacted workers’ mental health. The feeling of isolation, the lack of support, sometimes of purpose, has made remote working significantly detrimental for many. The pandemic has fast tracked us to an “always on” culture. 

Of course, this is not new for all workers, with long and anti-social hours being commonplace in some sectors. Where a business has requirements to respond to clients within tightly defined timescales, or clients know that they can demand fast responses and turnaround times because of the competition, the pressure is on to work longer and later and to always be accessible. 

Is there a need for legislation? 

“The right to disconnect” is a term as yet undefined by UK or EU law. The Working Time Regulations 1998 set out statutory limitations around working time and breaks. This was introduced in order to protect the health and safety of European workers. 

The European Convention on Human Rights also has a say in working time, at least indirectly. Article 8 of the Convention provides an enshrined right for a private and family life at home and Protocol 1, Article 1, confers a right on citizens to peaceful enjoyment of their property. There is also other health and safety legislation which is relevant to expectations over working time and the duty of care for the wellbeing of workers. Whether these are adequate is up for debate. 

In January 2017, France introduced legislation prohibiting employers from encroaching on their employees’ personal and family lives. In practice, this provided protection from dismissal, or other adverse treatment, for failing to respond to emails or calls during non-working time. There is a right to be paid extra for that time if they do respond. 

Many other European countries have followed, including Belgium, Italy, Spain, Ireland and most recently, Portugal. These have been decisions taken at a national level and Scotland has commenced consultation around the possibility of following suit. Westminster continues to consider whether to legislate around hybrid and flexible working and the limitations on contact outside of core, working hours are part of those considerations.  

It is difficult to envisage legislation that can be effective in providing adequately defined rules, yet with suitable flexibility for practical application among the diverse requirements of hybrid or remote workers and businesses. 

Are there better solutions? 

There is no doubt that there is technology which can assist to enforce these rights, if introduced. Applications that freeze access to emails or other methods of contact between set hours wouldn’t be difficult to implement. The risk though, is that this creates more problems than it solves. 

Burn out is real. Work related stress is present in perhaps every workplace in the UK, to a varying degree. Yet stress can be exacerbated by implementing rigid structures on working days. The success and evolution of flexible working is driven by the desire to have autonomy, not only over where workers work, but when and how they work. For working parents or carers to be told that they can’t do an hour in the evening, to allow them to take an hour to do the school run, will be too restrictive for many. 

There is a balance to be struck. Employers have a duty of care to their workers to control the working environment and limit the risks associated with an intrusion to their rest and relaxation time. This contrasts with a workforce looking for more agile arrangements and greater autonomy over their schedule. 

As is often the case, some sensible compromise is the most effective tonic. Allowing workers flexibility while encouraging them to strike an appropriate balance between work and family or home life is key. As is not taking punitive action against them if they don’t action an email at 7.00 pm or 7.00 am. 

The expectations are everything. How clear a business is on this and how those expectations are managed may be the most effective way to achieve a healthy balance between work and rest. 

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