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April 14, 2021updated 15 Apr 2021 7:45am

UK workers want the ‘right to disconnect’ but should beware of Ireland’s cautionary tale

The ability to switch off from work must be enshrined in law to ensure it helps - not hinders - employees.

By Cristina Lago

Most UK home workers want to see a “right to disconnect” from their job in the forthcoming employment bill, a new poll carried out on behalf of the trade union Prospect has found. Ministers are being urged to put a legal stop to unlimited work availability after 66% of those currently working remotely said they would support the policy. However, an ineffectual code of practice put in place in Ireland shows such legislation will need close attention to ensure it has the desired effect.

The Covid-19 pandemic and widespread switch to remote working have led to staff finding it difficult to disconnect from their work at the end of the day, according to the research, carried out by Opinium on behalf of Prospect. Thirty-five per cent of remote workers said their work-related mental health has deteriorated during the pandemic, with 42% declaring this is at least partly a result of an inability to switch off from work. In addition, 30% report working more unpaid hours than before the pandemic.

Prospect, which represents engineers and managers in the private and public sectors, is not the only trade union advocating for the right to disconnect. A recent Trades Union Congress (TUC) manifesto, ‘Dignity at work and the AI revolution’, includes a pledge on the right to disconnect as part of the work/home boundaries provision. In it, the TUC asks for a “statutory right for employees and workers to disconnect from work, to create ‘communication-free’ time in their lives.”

“We all need a good work-life balance with some proper downtime,” TUC general secretary Frances O’Grady told Tech Monitor in a written statement. “But today’s technology can easily blur the line between work and home, with no let-up from work stresses. Unions in France, Germany and Ireland have already won rights for workers to disconnect. It is time that workers in the UK were protected too with a legal right to disconnect from work.”

The employment bill was announced in the 2019 Queen’s Speech and set to come before Parliament this year. Though it is expected to include measures to protect workers with unpredictable hours, such as those on zero-hours contracts, there has yet to be any indication from the government as to whether a right to disconnect could also be included.

The right to disconnect in Europe

EU research agency Eurofound defines the “right to disconnect” (sometimes referred to as R2D) as “the right for workers to switch off their technological devices after work without facing consequences for not replying to emails, phone calls or text messages”. It can also include an employer’s obligation to ensure that employees do not work during leave periods or rest time.

French workers have had a right to disconnect since January 2017, when a new employment law passed by the French government the previous year took effect. Despite being part of a highly controversial package of labour market reforms, which caused widespread protests in the country, the provision mandating employers to “stop encroaching” on their employees’ personal and family lives with work calls and emails, was favourably accepted. The concept of “right to disconnect” had existed in France since 2004, when France’s highest court found that failure to answer work calls outside regular hours of employment was not a valid reason to fire an employee.

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Only four other EU member states, Italy, Belgium, Slovakia and Spain, use an approach to regulation that explicitly implements a right to disconnect, though others such as Germany have a history of companies implementing voluntary policies to the same effect. The European Parliament is looking to introduce legislation limiting employers’ access to workers’ free time and allowing employees to disconnect from work during non-work hours without consequences and setting minimum standards for remote work.

A note of caution from Ireland

While workers in these European countries have gained an extra level of protection thanks to ‘right to disconnect’ legislation, the situation in Ireland is less clear cut. On 1 April the Irish government approved a new code of practice which purports to give all employees a fundamental “right to disconnect” from work after they sign off. However, Irish solicitor Richard Grogan, an employment law specialist, says that this code of practice, which is not legally binding, could restrict rights workers already have under European law.

“What they propose is that an employer can contact an employee on business-related issues outside of normal hours on an irregular basis. But actually, in Irish law and European law, that’s not allowed at all,” he says.

Irish workers are already protected by the European Working Time Directive, Grogan explains. “In Ireland, you have a provision that [says] you have to get 11 hours of uninterrupted break between finishing work and starting,” he says. “We also have a provision in relation to work to be done 24 hours in advance. Since 1997, we’ve always had very strong legislation in Ireland about the right to disconnect.”

Grogan points out that a recent European Court decision ruled if an employee has to get to their workplace or do their work within a particular period of time, all that time has to be included under work time under European law. In that respect, he says, the EU has been much stronger in putting in place a right to disconnect that the Irish government has been, and the new code of practice adds little in the way of additional genuine protection. Whether the post-Brexit UK, which is free to set its own direction on employment law, will introduce a similar code, or formal legal protection, remains to be seen.

“What’s happening at the present time with the pandemic is that we’ve gone now to 24/7 availability, particularly for professionals and managers and executives,” Grogan adds. “Technology is great but technology now has caused this particular problem because we know even the most junior staff now have a laptop at home connected to the workplace. The issue with the right to disconnect is a serious one.”

Home page photo by Try_my_best/Shutterstock.

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