In 2019, before the COVID-19 pandemic, 4.7% of UK employees worked from home. The trend of increased remote working has continued, with 2023 data reporting that 29% of employees continued working from home at least some of the time.

Due to the increase in remote working, many employees have seen an absence of a barrier between work and personal life. In many organisations, this has developed an “always-on” culture, which pushes staff to continue working outside their business hours, leading to concerns around work-life balance and employee well-being.

This “always-on” culture prevents staff from disconnecting from work, prompting the Labour Government to propose the “Right to Switch Off” as part of their Plan to Make Work Pay. This policy aims to protect employee rights and ensure that workers can maintain a healthy separation between their professional and personal lives.

What is the UK’s proposed Right to Switch Off?

With the development of an always-on culture, the government is promising to introduce a new right for workers not to be contacted outside working hours by their employer. This initiative is set to become a significant element of employment law reform.

Government sources have indicated that the new right to switch off would allow employers to agree on contact hours with workers. This could give workers the right to ignore emails and calls during personal hours, protecting their mental health and preventing burnout.

If employers repeatedly breach this new right, employees could seek compensation at the Employment Tribunal. It is understood that the new right would not allow employees to make a stand-alone claim solely for an employer’s failure to follow an ACAS Code. However, if they bring a relevant Employment Tribunal claim, the tribunal can potentially increase the employee’s compensation by up to 25%.

Is the UK Alone?

The “right to switch off” is not a new concept, and many other countries have already embraced this within their HR policies.

• France: In 2016, France passed legislation for the right to disconnect, allowing employees to switch off their phones and other devices outside of working hours. Companies with more than 50 employees are obliged to draw up a “charter of good conduct” and set specific hours when staff cannot send or receive emails. Firms that do not follow the rules can face a potential €3,750 fine and up to one year in prison for senior management.

• Belgium: Belgium introduced laws allowing workers to switch off work emails, and texts, and not receive phone calls out of hours, without fear of retaliation. While originally only civil servants in emergency services were exempt, Belgium has expanded this obligation to private sector employers with 20 employees or more, who must include the right to disconnect in collective bargaining agreements or work rules.

• Spain: In Spain, remote workers have the right to digitally disconnect outside their working hours. The employer must have an internal policy for the right to disconnect and provide training for staff on the reasonable use of technological devices.

• Portugal: Portugal implemented its “right to rest”. Portuguese companies with more than 10 employees could face fines if they contact employees outside their contracted hours. However, employees can be contacted in cases of force majeure events. If the exception is misused, this can be prosecuted as a serious labour offence. Workers with children below the age of eight are also permitted to work remotely under these laws.

• Italy: Italy introduced legislation requiring that employers must detail the specific technical and organisational steps needed to ensure the employee can fully disengage from work-related electronic devices. The agreement must also identify rest periods, contributing to employee engagement and well-being.

• Greece: Greece established its “right to disconnect” in 2022. This law mandates that remote workers must completely abstain from providing work, especially when communicating by e-mail or telephone, during non-working hours and holidays. The law also prohibits discrimination against employees who exercise the right to disconnect.

• Brazil: Brazil implemented a right to disconnect as part of an employee’s right to occupational health. Failure to observe these statutory rights can result in fines for the employer.

• Australia: The Australian Government introduced a ‘right to disconnect’ via their Fair Work Act 2009. Employees with this right can refuse to monitor, read, respond to, contact, or attempt contact from an employer outside of their working hours unless the refusal is unreasonable. This right also applies to contact from third parties if the contact relates to the employee’s work. The right will be enforceable from 26 August 2024 for large businesses.

Why Switch Off?

In the absence of a current right to switch off, employers should be mindful and monitor hours carefully. This “always on” culture can increase the risks of employers unknowingly breaching the Working Time Regulations for guaranteed rest breaks and for those staff who have not opted out of the maximum 48-hour week. Ensuring compliance with these regulations is essential for HR compliance.

If staff cannot ‘switch off’, organisations could be faced with time-consuming and costly Employment Tribunal Claims. Additionally, the absence of boundaries separating personal and work-life balances has further implications for health and safety legislation. The culture of being unable to switch off has the potential to damage staff’s well-being and health and safety regulations if working hours are not managed safely.

How Can an Employer Prepare?

While the law will not be changing in the next few days or weeks, the government has pledged that the main promises would be enacted within the first 100 days of government, giving many businesses little time to update their working practices and understand their new obligations.

This new right will put the onus on employers to implement HR policies and practices that adhere to best practices. Employers may want to consider their working time arrangements now, contemplating how their right to disconnect policy could look and considering signing up to the Mindful Business Charter to support employees.

Employers may wish to consider:

• The practical arrangements for the application of the employee’s right not to be contactable after working hours.
• Instructions for the use of digital devices to guarantee rest periods, holidays, and employees’ private and family life.
• Training and awareness-raising measures for employees and management staff on the wise use of digital devices and the risks of excessive connection.

Stay informed on the upcoming changes by subscribing to our newsletter. For more detailed advice and support, contact us at 0333 888 1360 or [email protected]. Additionally, keep an eye out for our webinars, where we will be discussing changes in detail and providing actionable insights for your HR strategies.