A New Right to Switch Off

Labour are currently topping the polls and expected to win the next general election in under 12 months’ time.

In their 2021 Green Paper, Labour set out wide ranging employment law changes they propose to make within their first 100 days in power. One notable development anticipated is the “Right to Switch Off”.

There is currently no standalone employment right of this nature in the UK. Labour state that the Right to Switch Off is necessary “so working from home does not become homes turning into 24/7 offices” and so that workers will have “a new right to disconnect from work outside of working hours and not to be contacted by their employer”.

Similar concepts exist in several other countries, including Ireland, France, Italy, Spain and Portugal. In Portugal, since 2021 it has been illegal for employers to attempt to contact remote workers outside of working hours.

There is no detail at the current time as to how the new right would be enforced, what will and will not be deemed as acceptable, and whether it will be possible to opt-out or agree alternative arrangements. However, it is likely that employees would have the right to bring an Employment Tribunal Claim if the Right to Switch Off is infringed by employers.

Practically speaking, we expect the Right to Switch Off will lead to:

• Employers setting clearly defined working hours and stipulating when an employee can be contacted or expected to work;
• Introduction of policies setting requirements for the timing of contact between employees;
• Use of software by employers to intercept and block / delay emails from reaching staff;
• Exceptions for certain sectors where out-of-hours contact is required, e.g. care providers.

Under the Working Time Regulations 1998, workers currently have the right to work a maximum of 48 hours per week. However, they are commonly encouraged to sign opt-out agreements which nullifies this protection.

A Right to Switch Off may assist with fostering a healthier working culture that is sustainable in the long-term and may encourage staff retention, thereby benefitting employers too.

Whilst the proposal has mental health benefits in encouraging a healthy work-life balance, and any proposal which assists in reducing instances of employee burnout is something to be taken seriously, we  question whether the proposal will create tension between the greater levels of flexibility and seeking to govern or limit the hours in which work can be completed.

In many professional roles, it is difficult to see how contacting employees outside ‘normal business hours’ could be avoided completely. In the current cost-of living crisis, many employees are seeking to work additional, not fewer, hours. Much like office versus remote working, there is clearly a balance to be struck.

If Labour win the general election, we are doubtful that the change will be made during the first 100 days of Labour coming into power, not least due to the need to consult fully on the changes and pass legislation.

This is an area of law to watch for developments. Our Employment Team are shortly introducing a Quarterly Employment Law Update and the updates can be found on our website.

If you require any employment law assistance with your business, please do not hesitate to get in touch with Heather Cowley  or Susanna Spencer.