What is the right to disconnect and will it be introduced?

At the end of 2021, the Scottish government committed to have 'meaningful discussions' on whether the right to disconnect – the right to switch off from work outside of normal working hours - should be provided to its staff and those in devolved agencies; and stated that it should be considered by all public sector employers.

Why might workers need a right to disconnect?

The UK has seen a rapid growth in the number of workplaces adopting remote and hybrid working. There is no doubt that the COVID-19 pandemic has been a significant catalyst, with mandatory homeworking shifting attitudes about the necessity of in-office working. However, whilst the digitally connected world has provided greater flexibility, it has also had a negative impact on the ability of some workers to achieve a work-life balance.

Research from Autonomy Thinktank has suggested that working from home has created "an endemic of hidden overtime", where workers are not able to completely switch off from work. The ability to send and receive emails, messages and content at any time, often using devices issued by their employer, has meant that workers are increasingly working during evenings and weekends.

What is the right to disconnect?

A "right to disconnect" would provide workers with a legal right to avoid work and work-related communications outwith their normal working hours. It might, for example, mean banning late night emails; or informing workers that they are not expected to be available and respond to work-related communications after a certain time until their next working day. For those feeling pressurised to be "always on", it could help maintain healthy boundaries and tackle burnout.

It is not a new concept. Since 2017, workers in France have had the legal right to avoid work-related correspondence outside of their working hours, with employers legally required to negotiate a right to disconnect agreements with unions. Portugal also introduced a similar right in 2021; and Ireland has recently produced a code of practice on the right to disconnect.

What are some of the challenges of introducing a right to disconnect?

It is unclear how the legislation behind the right might operate. It is likely to give workers the right not to engage with work correspondence (including emails, telephone calls and instant messaging) outside their contracted working hours; and protect them from being subjected to a detriment for exercising this right. Some exemptions would be required, for example in the care sector where there is a genuine need to contact workers outside of their contracted hours.

Flexibility will be key: if the right to disconnect had the effect of introducing fixed working hours, clearly this would not suit all workers. Many workers, particularly those with childcare responsibilities, have benefited from the recent increase in flexible and home/hybrid working practices.

It would be a right to disconnect, rather than an obligation to disconnect. It may, therefore, not be particularly effective in reducing the long-hours culture if workers are happy to work beyond their contracted hours.

What will happen next?

The Scottish government's comments certainly signify the potential for a new right to disconnect, however, the proposals relate only to public sector workers. No detail has been provided yet in relation to the timescale and scope of any change.

Although a right to disconnect has been proposed in a House of Commons Briefing Paper on remote and hybrid working, and pressure is being placed on the UK government from unions to incorporate the right in legislation, the introduction of a legal right to disconnect for workers across the UK seems unlikely at present.

Employees and unions may, however, put start to pressure on employers across the country to act, particularly considering the increased focus on mental health and wellbeing.

How can employers support workers to disconnect? 

Even without a legal right to disconnect it is important to recognise the benefits of setting boundaries between work and home life. This can encourage increased productivity and job satisfaction, as well as help mental health and wellbeing. Consider the following practical steps:

• 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.
• 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.
• 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.