Labour's right to switch off: what do we know so far?

The new UK Government has proposed to introduce a "right to switch off", giving workers a right to disconnect from work outside of working hours.

Why might workers need a right to switch off?

The UK continues to see rapid growth in the number of workplaces adopting remote and hybrid working. There is no doubt that the COVID-19 pandemic was a significant catalyst, with mandatory homeworking shifting attitudes about the necessity of in-office working. However, for some, the lines between home and work have become blurred, resulting in a negative impact on work-life balance.

What is the right to switch off?

Labour's Plan to Make Work Pay states that "We will bring in the right to switch off, so working from home does not become homes turning into 24/7 offices." A right to switch off would give workers the right not to have to engage with work correspondence (including emails, telephone calls and instant messaging) outside their contracted working hours. 

How will the right to switch off be introduced?

Labour has indicated that it will "follow similar models to those that are already in place in Ireland or Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties".

In Ireland, the right to disconnect was enacted through a code of practice which can be used as evidence in relevant proceedings in claims for breaches of employment rights. Legislation was introduced in Belgium, applicable to companies with 20 or more workers, requiring written agreements or work rules on disconnection agreed through collective bargaining. There are no specific sanctions for employers who have not followed the code (Ireland) or implemented the right to disconnect (Belgium).

It appears that the Government will consider both options, potentially in a consultation, before determining which approach to take. However, reports have suggested that the government is favouring combining the Irish and Belgian schemes. It is expected that:

• The new right will be enacted through a code of practice, with an obligation on employers to enter into workplace agreements documenting contact hours and tailored right to switch off policies.
• Workers who are repeatedly contacted outside of normal working hours may be able to claim uplifted compensation in a successful connected tribunal claim (e.g. constructive unfair dismissal, sex discrimination). There would, however, be no right to bring a tribunal claim based solely on a failure to follow the code of practice.

There is very little detail available at this stage:

• What level of uplift will tribunals be able to apply?
• Could a breach of a workplace agreement lead to increased compensation, or just a breach of the code of practice itself?
• Will all employers be covered, or will there be an exemption for small businesses or for those working in certain industries (such as the care sector where there can be a genuine need to contact workers outside of their contracted hours in emergencies)?
• To what extent will contact during annual leave be regulated?

What will happen next?

We don't yet know the proposed timescale. The right to switch off did not feature in the King's Speech on 17 July 2024, although it may be contained in the Employment Rights Bill which is expected to be published in October. It is unlikely that any legislation will come into force before next year.

How can employers support workers to switch off?

Setting boundaries between work and home life can encourage increased productivity and job satisfaction, as well as help mental health and wellbeing. To prepare for the new right to disconnect, and to support workers to switch off, consider the following practical steps:

• Introduce a right to disconnect policy and review your flexible working and home/hybrid working policies. These need to balance the flexible working options available for those who prefer to work a "non-standard" working day with the need for some workers to be supported to disconnect from work-related communications outwith their normal working hours.
• Encourage workers to take the daily and weekly rest breaks / periods and annual leave they are entitled to.
• Monitor workloads to ensure work is proportionately allocated and to avoid employees feeling overwhelmed.
• Carry out surveys / encourage dialogue with workers on the reasons for any long-hours culture, why some workers might not be prepared to disconnect from the workplace, and how remote working is operating in practice. Take steps to find out if, for example, anyone is experiencing difficulties because of the method or frequency of communication from their line manager.
• Provide training on mental health awareness and how to disconnect.

For more information about anything discussed in this blog, please contact a member of the Brodies Employment and Immigration team.

Workbox by Brodies, our HR and employment law site, also has detailed information and resources on working arrangements and mental health.