What do we mean by the right to disconnect? The right to disconnect (sometimes referred to as switch off) is a proposed human right that gives employees the right to disconnect from work and not engage in work related activities outside of normal working hours.
This could include
- Not being contacted by e-mail or other means outside core hours, holidays etc
- Not scheduling meetings outside of core hours
- Not monitoring or reading e-mails, calls outside core hours.
The right to disconnect aims to protect employee health, safety and well-being and avoid overwork and burn out through promoting a better work life balance.
What is the position?
An employee is perfectly able to simply not pick up e-mails or phone calls outside their core hours but there is a risk of a backlash from the employer and there is a likelihood that an employee may be subject to disciplinary action. It is also reasonable to assume that an employee who is not willing to work outside core hours may find career progression hampered.
The likelihood is that we will see legislation which will more formally ensure that the right to disconnect or switch off becomes a statutory right as it is in some European countries.
How easy could it be to introduce?
Introducing it is easy but it opens up a can of worms because we live in a 24/7 society, business is international with different time zones and as customers and consumers, we are fundamentally impatient and demand immediate service. Not to mention, the current trend towards more flexible working arrangements where employees want far greater flexibility to do their hours and if you throw the right to disconnect into the mix, you have the recipe for some very challenging discussions between employer and employee.
Employers will also have serious concerns about the impact of such proposed legislation because when emergency issues arise which require immediate action, it is necessary to respond immediately and employee goodwill comes to the fore.
What are core hours?
In most cases, employees should have clarity in their terms and conditions about what their weekly contracted hours are and how those hours should be worked.
However, in many contracts there will be a clause that says that the employee is “required to do those hours that are necessary for the satisfactory performance of the job.” That could mean that you are required to stay on at work for 10 minutes to get the job finished or it may mean that you have to come in at weekends to do the work. From an employee perspective, their desire to respond may be determined by whether or not they are going to get paid for additional hours or if working extra hours is just taken as granted – sometimes it’ seen as part of the job – “goes with the territory” – and it’s taken for granted.
As an example…
An employee is contracted to finish time at 4.00pm and a meeting is put in the diary at 4.00pm and the employee refuses to attend the meeting. In that situation, what could the employer do? They could take disciplinary action against the employee on the basis that they refused to obey a reasonable management instruction. But much will depend on the interpretation of the word “reasonable”.
- Was the employee given advanced warning of this meeting?
- What level is the employee?
- Would they have been paid extra for attending the meeting?
- What does their contract say?
- Could they have made alternative arrangements?
- Was there an opportunity to join the meeting by Teams?
- How important was their presence at the meeting?
- Was this a “one off” at 4.00pm and has the employee refused to attend before?
- What were the consequences of the employee’s non-attendance?
- Did the business lose valuable goodwill and or revenue as a consequence of the employee not attending?
- Was the employee’s non-attendance due to child care commitments and/or carer responsibilities?
The list could go on and it is easy to see this from both sides of the table.
Employer’s expectations
Where an employee is issued with a lap top and/or Company mobile device, the employer could reasonably expect that the employee will check their e-mails and pick up calls out of hours but again, they don’t have to.
If an employee receives an e-mail at 9pm and the next morning the employer says why didn’t you deal with the e-mail, their defence could be that it was outside core hours or they could argue that they didn’t log on, had a problem with their broadband at home etc.
But then the employer might say that they could have seen the e-mail on their phone. Employee might say their phone was on silent, out for the evening, no reception etc.
These are all very plausible defences and you can think of so many more.
However, you could argue that the more senior the person, the greater the requirement to be flexible and also, a lack of flexibility could hamper career progression but some would argue that career development shouldn’t be conditional on working extra hours.
Stand by and call out arrangements
In many sectors there will be stand by and call out arrangements where employees are compensated for the fact they must be available to deal with issues out of hours. And, to be fair, many employees willingly do call outs and stand by because it is an excellent way to supplement their basic pay. However, often as you climb the organisation ladder, you have to transition from being paid for every hour worked to a salary that is deemed to be inclusive of all hours worked.
Some Engineers even programme faults for the middle of the night so they get the call out and can book the hours.
Why does all this matter?
Quite simply because we have a mental health crisis and employers owe a duty of care to employees and championing a good work life balance is important.
We have mobiles and lap tops and we can’t control the time an e-mail comes in or when someone calls you but you also hear stories of people who get that sinking feeling when they look at their phone on a Sunday evening and see the e-mails they need to deal with in the morning. Others love the buzz but we are all wired differently.
Creating a statutory right to disconnect (switch off) is easy but it can’t be looked at in isolation and when you factor in issues such as work life balance, mental health, increased rights to work flexibly, it becomes another nightmare for employers, especially SMEs.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
