Do Employees Have The Right To Disconnect?

IN THIS SECTION

The right to disconnect has become a much-debated employment issue in recent years. With remote working a pervasive practice since the pandemic, boundaries have increasingly blurred between work and home life for more workers than ever, resulting in growing cases of stress and burnout. This has raised questions over whether workers should be given a right to disconnect.

Under existing laws, employers are under a duty to safeguard the health and wellbeing of their employees at work, including taking all reasonable steps to minimise any risk of work-related stress and employee burnout. Employers are also under a duty to ensure that employees are given appropriate daily and weekly rest breaks, and work only a reasonable number of hours each week.

The following guide for employers looks at best practice when it comes to promoting a healthy workplace culture and working practices in the context of an employee’s right to disconnect.

 

What is the right to disconnect?

With the extensive use of remote access in many industries, it has increasingly become the workplace norm for employees to take calls or check emails and texts outside working hours. For some employees, this gives them the peace of mind that everything is ticking along nicely in their absence and enables them to keep on top of their work. For other employees, they feel this is what is expected of them these days, even where they haven’t been overtly pressured into being available for work purposes outside their normal working hours.

The right to disconnect essentially refers to the legal discussion surrounding the employee’s right to switch off from work once their working day is over. The widespread use of home and hybrid working throughout the pandemic has almost certainly added weight to the ‘right to disconnect’ debate for those who work digitally, with calls for the UK government to introduce specific protections for workers in the context of an ‘always on’ workplace culture.

Such protections could include banning bosses from routinely emailing, calling or texting outside of working hours, or automatically deleting or diverting emails sent at these times to deter staff from checking their inbox when off-duty. It could also include the right for employees not to be penalised for refusing to attend to work matters in their own time.

 

What does the law say about the right to disconnect?

There is currently no automatic legal right to disconnect in the UK. This means there is no express right conferred on employees to disengage from work-related communications during non-working hours, or any specific prohibitions against employers from contacting employees or sending work-related communications etc outside their normal working hours.

Still, even without any express right to disconnect, employees are only obliged to be available for work during their normal working hours, unless their contract requires them to be on call. Employees are also afforded certain protections under UK employment law, not least when it comes to their health and safety at work, as well as under the working time rules.

 

Health and safety law

Under the Health and Safety at Work etc Act 1974 all employers have a duty, so far as is reasonably practicable, to ensure the health, safety and welfare at work of their employees. This includes the employee’s mental health and emotional wellbeing. This means that employers must take all reasonable steps to foster a healthy work-life balance, rather than expecting employees to be continually available to answer calls or respond to emails or texts.

Work-related stress and employee burnout are both widely recognised as serious health and safety issues within the modern workplace, where the employer is duty-bound to treat these conditions like any other workplace hazard. To discharge their statutory duty, employers must identify any risks to health and safety to which an employee may be exposed, such as feeling unable to switch off or responding to work-related communications during their free time, and take appropriate measures to manage and control these risks.

The employer is also under a duty to consider any mental impairment that may amount to a disability, making reasonable adjustments to an employee’s working conditions to remove or reduce the effect of an employee’s disability so they can do their job. This means that where an employee is required to be on call, the employer may need to consider amending these duties or reducing their ‘on call’ hours.

 

Working time rules

Under the Working Time Regulations 1998, a worker or employee cannot usually work more than an average 48 hour week. The individual can opt out of this maximum weekly time limit by agreeing to this in writing. Still, even where the person has opted out, this does not mean that they should be available 24/7. On the contrary, opting out does not negate the employer’s duty to ensure the health and wellbeing of its’ workforce, where the employer must continue to take steps to control and reduce any risk arising from working long hours.

The 1998 regulations also stipulate minimum daily and weekly rest periods, where staff working more than 6 hours a day are entitled to an uninterrupted rest break of at least 20 minutes taken during the day, an 11-hour break between shifts and one day off per week or two days off per fortnight. The employee’s contract of employment may make provision for longer rest breaks, for example, for a longer lunch, although the employee must not be given any less than the statutory minimum daily breaks or rests between shifts.

 

What is the potential impact of a constantly connected workforce?

Although it may at first seem beneficial that employees are regularly working out of hours to get jobs done and respond to queries, especially as this is likely to equate to hours of unpaid overtime, it can actually be very damaging, both for the employee and for the business.

For an individual employee, unable to switch off and relax after a day’s work, they can quickly and easily become burned out. Employee burnout is an acute state of either physical or mental exhaustion resulting from work-related stress and is recognised by the World Health Organisation as an occupational health condition. This can result in decreased motivation and morale. It can also lead to both short or long-term absence from work due to ill health.

For the business, employee burnout caused or contributed to by an unhealthy work-life balance can be costly, not only in terms of reduced performance or absence from work, it can also result in the loss of a valuable member of staff through incapacitation or even resignation. This, in turn, can expose the employer to claims for breach of statutory duty or even constructive dismissal if the employee feels forced to resign because of work-related stress.

Additionally, where an employee has a long-term mental health impairment caused or made worse by work-related stress, unless the employer has made reasonable adjustments to their working conditions, this could amount to unlawful disability discrimination.

 

What are the common signs of employee burnout?

Given the cost and legal risks associated with employee burnout, spotting the signs and putting in place measures to reduce the effects of work-related stress can be crucial in minimising its impact. Unfortunately, in the same way that employees may feel fearful of reprisals for being unavailable outside of working hours, they may equally have concerns about disclosing how they’re feeling, especially within a competitive working environment.

This means that employers should always try to spot the signs that an employee may be struggling with work pressures, rather than solely relying on an employee to speak up. The employer must therefore regularly check on the wellbeing of their staff and learn to spot the signs of employee burnout. No two employees will show the same symptoms, as employee burnout can manifest itself in a number of ways, although some common signs can include:

  • Reduced levels of performance and productivity
  • Increased mistakes or accidents at work
  • Increased levels of sensitivity and irritability
  • Increased absenteeism or lateness
  • Lack of engagement, motivation or enthusiasm
  • Complaining about feeling consistently exhausted
  • A change in attitude, including signs of negativity or cynicism
  • Physical signs of fatigue, such as a dull complexion or dark eye circles
  • Deterioration in appearance or personal hygiene.

 

How should employers approach the right to disconnect?

Some employers may take a dim view of employees who log-off as soon as their working day has officially ended or who do not make themselves available outside of their normal working hours. In some cases, the employer may even treat this as a misconduct matter.

Still, despite the fact that a right to disconnect is not enshrined in UK law, employers should be extremely cautious of disciplining an employee for refusing to respond to work-related communications during non-working hours, unless contractually required to do so. Taking or threatening disciplinary action could, of itself, put undue pressure on an employee already suffering from work-related stress, even if they’re not showing signs of employee burnout.

Instead, in discharging their duty to ensure the health and wellbeing of their staff, and to ensure compliance with the working time rules, employers should be encouraging employees to switch off during their free time. This can help to promote a healthier and happier workforce, and a much more productive working environment during office hours.

In the absence of any government intervention to tackle the UK’s ’always on’ workplace culture, employers must implement the necessary internal measures to protect the mental health and wellbeing of their workforce. There are various ways in which employers can help to encourage employees to disconnect. These include:

  • Ensuring members of staff, in particular management, do not routinely call or text employees with work-related matters outside office hours, unless in an emergency
  • Regularly reminding employees that they’re under no obligation nor indeed expected to send or respond to emails outside their standard working hours
  • Actively encouraging employees to switch off their communication devices and send automated emails when they’re not available, and to completely break free from work mode whilst on annual leave
  • Actively encouraging employees who are contacted out of hours to only respond when back in work, unless in an emergency
  • Including footers and pop-up messages in emails to remind employees that there’s no requirement to reply to emails out of hours
  • Providing individual support for staff who demonstrate a pattern of answering emails outside their normal working hours, for example, during any one-to-one reviews
  • Providing training on good management practices to help curb any problems created by line managers overloading their staff, including the importance of a healthy work-life balance
  • Implementing a ‘right to disconnect’ workplace policy outlining how employees will be expected to disconnect from work during their free time as a means of promoting their mental wellbeing, and the procedures that will be put in place to permit them to do this
  • Drawing up a charter of good conduct, negotiated in conjunction with union representatives, setting out the hours when employees are not supposed to send or answer emails
  • Restricting an employee’s remote access or configuring email servers so that emails can only be only sent during specified times.

 

In many cases, employers will be keen to strike a balance between the flexibility of undertaking work-related tasks and responding to work-related communications outside office hours — especially where this allows a particular employee to work around other commitments — and ensuring staff do not feel obliged to work more than their contracted hours or to be constantly available, simply because they work digitally.

It is about finding the right balance for both the business and the workforce, in some cases taking into account the individual needs and preferences of each employee. It’s also about ensuring that employees feel that the employer cares about their health and wellbeing, where maintaining a healthy work-life balance is an important part of their overall welfare.

 

Need assistance?

DavidsonMorris’ HR advisers and employment lawyers support employers with all aspects of employee engagement and workforce management, to support effective performance and positive cultures while meeting legal duties in respect of health, safety and wellbeing. For specialist advice, contact us.

 

Right to disconnect FAQs

Do employees have the right to disconnect?

There is no express right to disengage from work-related communications during non-working hours, although employee’s are only obliged to be available for work during their normal working hours, unless their contract requires otherwise.

How can employers avoid employee burnout?

One of the ways in which employers can help to avoid employee burnout is by promoting a healthy work-life balance. Encouraging employees to disconnect from work-related tasks or communications outside their normal working hours can be key here.

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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