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Is a “right to disconnect” a pandemic legacy?

Natalie McEvoy

With the uptick in both working from home and monitoring employee welfare as an ESG metric, we consider whether a ‘Right to Disconnect’ will become ingrained in UK law.

An employer’s duty of care has always been an evolving standard which reflect workers’ environments and the labour landscape, from the earliest duties not to cause personal injury to the latest calls to allow employees to disconnect from technology. Humane treatment of employees is seen as an important ESG (Environmental, Social and Governance) and sustainability metric for a company, of interest to investors, shareholders and customers alike. That duty in turn impacts the stability and health of the workforce, employee happiness and engagement and the good reputation of the company. Securing reputation in turn helps prevent operational crises for a business.

In 2001 and again in 2004, the French Supreme Court held that the fact that an employee had not been contactable at home was not misconduct. An employee was not obliged to agree to work at home or to have any work files or tools there. In fact, this led to a legislative improvement in working conditions, bringing the French Labour Code up to date with the digital age and specifically enshrining a right to disconnect. Employers needed to be alive to the reasonable use of digital tools and respectful of rest periods and leave as well as personal and family life.

Twenty years and one pandemic later, we all find ourselves with our work files and tools at home, with our homes carefully adjusted to give us spaces to work effectively without ever having to leave. With the office purposefully brought into the home, and with many deciding to work more regularly from home even post-pandemic, considerations around a need to disconnect have never been more applicable. Do diligent workers need protecting from themselves by the state?

Italy and The Philippines followed France’s lead pre-pandemic; Ireland and Slovakia just this year, and Canada is setting the wheels in motion to amend their laws to safeguard a period of disconnection for workers. Germany has fallen short of legislating for now, but in response to concerns regarding employee stress and mental health issues, companies not uncommonly include restrictions on email servers to prevent messages being sent to employees between 6pm and 7am.

The Department for Business, Energy and Industrial Strategy has hinted that the forthcoming Employment Bill may be the forum for bringing in this policy change in the UK. The Bill is promised to be the conduit for “the largest upgrade to workers’ rights in a generation, including measures that will help people to balance work with their personal lives.” A right to disconnect seems a reasonable conclusion, then, formally requiring companies to engage with workers to define periods when they will not be contacted for work purposes.

Is this destined to become a new Human Right? Something so important and fundamental to every person in the world that it deserves special protection; a claim on society from birth until death, based on the shared values of a civilised society? In all but name, it already is. Since its enactment in 1948, Article 24 of The Universal Declaration of Human Rights has protected the right to rest and leisure, including a reasonable limitation on working hours. The “right to disconnect” is nothing more than a technological tweak; an update to reflect how our workplace has shifted into our homes.

Ringfencing hours when an employee will not be asked to engage is a good start, but with no “workplace” in which to potentially spot social concerns such as a mental or physical health decline, proactive employers are already starting to consider how to fill that gap in a remote environment.

More and more employers are offering wearable technology such as smart watches as the next employee “perk”. These would enable employees to elect to feed back how they are faring in a work-from-home environment and whether they need extra support to prevent burnout, but would also potentially allow the employer to track employee sleep patterns, stress levels, heart rate and by extension, fitness. Wearable tech has been shown to increase productivity and has in fact been well- received by employees, who feel that an employer understanding how well or otherwise they are coping is important, and that the other data being collected is an acceptable side-effect. However, any exercise which collects such a large amount of personal data from employees creates a huge responsibility on the employer for trustworthiness and careful management.

It has been repeatedly recognised that the COVID-19 pandemic has advanced flexible working in a way that nothing previously could. It demonstrated in our post-industrial, technological workforce, an agility of performance, where location of work plays second fiddle to resources. How far back to office-based models we return will depend largely on individual employers and employees, but in an age where we are always contactable, the right to disconnect will be an important protection for all, not just those who continue to feel “at the office” in their own home.

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