Recently, a majority of the European Parliament voted to introduce the ‘right to disconnect’. This is a worker’s right to disengage from work and work-related communications, such as emails, during non-work hours. Although the EU’s Working Time Directive stipulates minimum daily and weekly rest periods, and work-life balance is one of the 20 principles enshrined in the European Pillar of Social Rights, there is no specific right under EU law for those who work digitally to switch off outside working hours. Furthermore, Article 24 of the Universal Declaration of Human Rights asserts the right to rest and leisure, placing explicit limitations on work-time. Campaign group, Right to Disconnect UK, make the case that the right to disconnect updates this declaration for the digital age.

There is no doubt that the pandemic has exacerbated the blurring of boundaries between work and personal life for many workers, with research from Eurofound in April 2020 finding that 28% of those working from home report working in their free time every day or several times a week, compared to 8% of on-site workers. A significant number of workers in the UK would stand to benefit if this right was introduced, with nearly 47% of workers doing some work at home by April 2020.

Now that we have left the European Union, the UK is no longer required to remain in step with Brussels on a variety of policy areas, including employment legislation. Nevertheless, The EU is continuing with new progressive policies, including setting minimum standards for all member states on the right to disconnect. Several European countries already have some form of this right enshrined in their national law, while in other cases it is present in the policies of large corporations.

Ireland

Earlier this month, all employees in Ireland were granted the right to disconnect under a new official code of practice, which includes three main clauses;

• The right of an employee to not 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.
• The duty to respect another person’s right to disconnect (for example, by not routinely emailing or calling outside normal working hours).

While it will not be an offence to break the code, workers who are asked to regularly work outside agreed hours will be able to refer to it in proceedings before the Labour Court or Workplace Relations Commission (WRC). This new right forms part of the Irish Government’s commitment to create more flexible family-friendly working arrangements, which also includes a consultation on legislating for workers to have the right to request remote working.

France

France is considered to be a pioneer in legally recognising this new right. Since 2017, employers with more than 50 workers have been obliged to draw up a charter of good conduct, negotiated in conjunction with union representatives, setting out the hours when staff are not supposed to send or answer emails. The right to leisure time is fiercely protected in France, where employees also benefit from a shorter working week and longer holidays than many of their continental neighbours. However, as the law doesn't specify what procedures employers must put in place to ensure a workers’ right to disconnect, the level of protection is likely to differ widely from employer to employer. Additionally, employees at organisations with fewer than 50 employees cannot enforce their right to disconnect.

Company-level initiatives

Despite there not being any legal impetus to do so in Germany, Volkswagen introduced policies in 2011 to configure their email server so that emails can only be sent from half an hour before the working day begins to half an hour after it ends, and not at all during weekends. In a sense, employees at Volkswagen have the right to be disconnected, rather than just the right to disconnect. However, these rigid rules remove much-needed flexibility from the employer and from the worker. Being a global company, teams may encounter barriers when having to work together across time zones. Furthermore, working remotely during the pandemic has meant that some employees have needed increased flexibility, for example by taking some hours out of the working day to help with home schooling, then returning to work in the evening or at the weekend. This would be difficult to do at Volkswagen without requesting changes to be made at the server level.

What next?

The right to disconnect is a complex issue on the global agenda, with legislation on the right to disconnect also being implemented in recent years in Italy, Spain, Slovakia and The Philippines. Furthermore, given Business Secretary Kwasi Kwarteng’s recent commitment to protect and enhance workers’ rights rather than scale them back, developments within the EU to create a level playing field in this area are significant.

Almost all workers in the UK would benefit from this new rule aimed at promoting better work–life balance, especially those working exclusively from home during the pandemic. There is a need for government intervention to tackle this ’always on’ culture rather than leaving it up to employers to implement the necessary internal measures, with the approach taken in Ireland perhaps being the most workable option. As we recently explored in Standing at a crossroad: Brexit and the future of workers' rights, the upcoming Employment Bill is an opportunity for government to do so, while also continuing to strengthen rights and protections in a wide range of other areas.

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