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All About The Right to Disconnect

There is no doubt that the pandemic has changed hundreds of businesses workplace models. An analysis by Lancaster University’s Work Foundation found that pre-pandemic, just under 6% of employees working remotely or had a hybrid working set-up. This rose to over 30% when the first national lockdown hit in March 2020 and has only dipped slightly over the past year.

Even as Covid-19 restrictions have lifted and paved the way for employees to return to the office, it still looks like home working is to be a regular feature way into the future. According to YouGov, just one in five businesses are planning to bring workers back into the office for the full five-day working week as the pandemic ends.

While working from home certainly has its benefits, there is a dark side to remote working that is often not spoken about. Homeworking can carry the high risk of the lines between work and home life becoming blurred.

The ONS found that out of the whole of the UK’s employed population, 35.9% did some sort of working from home over the course of 2020. While these employees may have saved time on commuting, among other benefits, it has been found that they also worked around six additional hours of unpaid overtime each week.

This has caused campaigns for the right to disconnect bigger and louder than ever before. But what is the right to disconnect and how does it work?

Here at Kiwi Recruitment, we’ve investigated what the right to disconnect means and how it may be implemented in the UK in the future.

What is the right to disconnect?

The right to disconnect is the overarching idea that recognizes the impact of technology on the workplace, with emails and other instant messaging services making it easier to contact colleagues now more than ever.

Ultimately the right to disconnect gives employees the right to disconnect from their job outside of normal working hours; Once they are off the clock, they will not receive or be required to answer any work-related calls, emails or messages until they are back in working hours.

The UK’s working time directive stipulates that employees, unless they voluntarily opt-out, cannot work more than 48 hours a week on average, which is normally averaged over 17 weeks. If the right to disconnect were to be implemented in the UK, it would mean that employees would not be contacted outside of these hours, or their agreed contracted working hours, whatever is less.

Which countries already have it?

The UK is already a few steps behind a number of countries in the world when it comes to the right to disconnect. Several countries have already introduced rules that prevent employees from working outside their allotted hours.

Earlier this year, a majority of MEPs in the European Parliament voted in favour of making the right to disconnect an EU-wide fundamental right. However, while there is currently no specific right under EU law for the right to disconnect, some countries within the EU have chosen to implement it on their own.

Since 2017, employers in France with more than 50 employees have been legally required to create what is called a “charter of good conduct”. It works by employers working with union reps to agree on set hours in which staff are not supposed to send or receive emails.

Ireland also implemented their own code of practice in April 2021. While it does not give employees a legal right to disconnect, it gives them the power to take action against employers if they feel as though they have been penalized for refusing to attend work or work outside normal hours.

There have also been similar movements to introduce some form of a right to disconnect in several other countries, including Luxembourg, Spain, Germany, Italy, and Belgium.

In some cases, companies themselves have taken it upon themselves to introduce a right to disconnect for their employees, the most notable being Telefonica and Volkswagen. Telefonica brought in a policy in 2018 that was agreed between them and their employees, while Volkswagen introduced company policies in 2011 that limits emails sent before and near the end of the working day and over weekends.

How would it work in the UK?

Prospect, a union campaigning for the right to disconnect in the UK, has proposed three different ways that a right to disconnect could be implemented in the country.

The first method is known as an enterprise agreement. The agreement would be made between an employer and a union to ensure employees can agree on times in which they can and cannot be contacted.

The second method would be through a directive approach. This means a legal framework would be put in place to enforce a right to disconnect.

The third method would be a prescriptive approach. This means a legislative or statutory approach would be set out that tells organisations what a right to disconnect would look like across different industries and sectors.

The challenges to implementing the right to disconnect

While the right to disconnect is rightfully seen as something positive in theory, there are some challenges as to how it would work in practice, particularly in a post-Covid world.

When the pandemic caused home working and hybrid working practices to be adopted en masse, it also caused an increase in flexible working practices. Since the pandemic started some employees have largely been able to decide when to work, allowing them to work at a time that suits them which may be outside of the traditional working hours of 9 am to 5 pm. Many employees have enjoyed this, while other employees have made calls for this kind of flexibility in their working hours.

The majority of right to disconnect laws and policies enforced across the globe, either at a company or country level, were enforced in a pre-pandemic world and therefore were mostly focused on a structured in-office workday period. This no longer reflects the world we are currently in, nor does it reflect what employees desire in a job anymore.

The only country that has enforced this since the pandemic has been Ireland, which implemented its code of practice in April 2021. They have tried to overcome the challenges that come with a right to disconnect in a post-pandemic working world by not specifying what is considered to be “normal working hours” and applying these rules equally to those who work remotely or in the office. The code of practice also specifically references working across time zones, something that is also becoming more popular with remote working. The code asks firms to manage expectations of employees doing international business, and that these employees need only reply to work emails, calls, and messages during their working day.

However, there are some experts out there that are still sceptical as to whether these right to disconnect policies will work, even if they have been modified for a post-Covid environment. This is especially the case if employees want or need flexible hours just as much as they want or need remote working. Although new right to disconnect codes can accommodate different definitions of “normal working hours”, those employees with less rigidity in their working hours may find themselves left behind when it comes to a right to disconnect.

Even if ways to implement the right to disconnect with the way we work now are found, there is the risk that some of the outcomes will be undesirable for employees. Len Shackleton, professor of economics at the University of Buckingham explained to the BBC that if employees are stopped from connecting at certain times, such as evenings or weekends, then “employers are going to want to be damned sure you’re available and fully occupied during your contracted hours.”

Eileen Schofield, a UK employees rights lawyer also warned the BBC that if any new rules come in just as businesses struggle to reset after the pandemic could prompt knee-jerk reactions from employers. She also added that this could cause employers to become more prescriptive with their employees working hours, ultimately damaging the flexibility employees have gained over the past year and a half.

When will the right to disconnect be implemented in the UK?

Despite campaigns from employees and unions, there is currently no immediate plan to implement a right to disconnect in the UK.

However, the government has said that its Flexible Working Taskforce is investigating how hybrid working will work after the pandemic. This investigation also includes examining the right to disconnect.

Schofield herself believes, in order to prevent any damaging knee-jerk reactions, it is necessary to allow employers to wait until the pandemic has well and truly subsided. This way employers can work with their employees to work out what their own “new normal” is going to be, before looking at implementing any right to disconnect practices. Given many companies are still looking at what their new working model will look like post-pandemic, it is likely to be some time before a right to disconnect could be implemented in the UK.

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