The Right to “Disconnect” for Employees

Seyfarth Shaw LLP

We have seen the benefits of technology in keeping us connected in the new remote working environment and the flexibility that it provides, but how does this impact employees’ ability to disconnect from their work?

During the Covid-19 pandemic, working from home has become the new norm, and this doesn’t seem set to change, with many large employers stating they do not plan to bring staff back to the office full-time.

Although many have enjoyed the shift to greater flexibility and more frequent working from home, simultaneously, many have found it difficult to create a distinction between home and work life. Further, in the absence of normal daily activities, socializing, and holidays, some people filled their time with working around the clock. This has led to a number of issues such as employees working longer hours, suffering from stress/fatigue/burnout, and solidification of the “always on” culture.

In light of these issues, we are seeing several countries outside of the US, issuing new regulations to allow effective disconnection from work and work-related communications outside of normal working hours to protect employees’ health and improve work/life balance.

Take up of the right to “disconnect.” What are the options?

Some European countries including France, Spain, Belgium, and Italy have already established a statutory “right to disconnect” for employees, and similar legislation has also been implemented in jurisdictions outside of Europe, including the Philippines, Argentina, and India.

Other countries have proposed or considered adopting such a right including the Netherlands, Luxembourg, and the federal government of Canada.

In Ireland the right was recently introduced through a new Code of Practice, making it one of the first countries to introduce such a measure post-Covid-19. The Code encourages employers to create a culture of good work/life balance and alleviate employees from the expectation of responding to messages out of hours. It is not legally binding but was built on the foundations of existing legal obligations in Ireland, such as the 48-hour week, health and safety obligations, and the right to a statement of key terms setting out working hours.

In the UK, Prospect, the trade union for professionals such as engineers, scientists, and civil servants, has been particularly active in urging the UK government to include legislation on the right to disconnect in the upcoming Employment Bill, but the government currently does not appear to have plans for a specific legal right to disconnect.

Interestingly, some large companies have voluntarily put in place “disconnect from work” policies to stop email servers from sending emails to employees during off hours in a bid to combat the above-mentioned issues.

Sweden has taken a different approach to achieve a similar aim with reduced work hours and more leisure time, which has led to a marked reduction in absenteeism and improved health and productivity. 

In terms of the actual implementation of a statutory right to disconnect, in France employers must negotiate an agreement with union representatives on the right to disconnect outside working hours. The law does not impose rules on how employees should “switch off”; instead it requires that companies in which one or more trade unions have set up a “union section” (typically companies with at least 50 employees) must enter into mandatory annual negotiations to define how staff can exercise their right to disconnect, and (if no agreement with the unions is reached) adopt a unilateral “charter” in this respect after consulting their works council. These negotiations must also cover the establishment of “arrangements to regulate the use of digital equipment, in order to ensure compliance with rest and holiday periods and to protect personal and family life.”

Under French law, there are no direct sanctions on companies for not complying with these rules, but employees can sue if they feel their rights have been infringed. For example, an employee at a large pest control company was granted EUR 60,000 in compensation for being “on call,” after a French court found the company had required the employee to “permanently leave his telephone on… to respond to requests from his subordinates or customers” if problems arose outside his hours of work.

In practice, some companies have gone so far as introducing measures including cutting email connection in the evening or on weekends, or even destroying emails automatically that are sent to employees while they are on holiday.

In Belgium, legislation does not grant a general “right to disconnect” but rather a right to address and discuss the issue. Each employer must consult with the Health and Safety Committee about disconnecting and the use of digital communication tools. The measures decided on should then be confirmed in company work rules, in a collective bargaining agreement or a policy.

In Spain, companies are obliged to come up with a policy, to be negotiated with employee representatives, including measures to allow the employees to “digitally disconnect.” While the regulation does not include the specific actions that need to be taken, companies have taken a variety of measures, for example, (i) the right to not respond to email, phone, or instant messages after working hours, unless in exceptional circumstances, and the Company will not impose any disciplinary action for being unavailable during hours of “disconnect”; (ii) that managers must refrain from requesting a response out of working hours or in a time close to the end of working hours, or if sent the recipient can expressly assume that they can respond the following day; and (iii) that meetings must be set up and take place during working hours.

In May this year, the Italian legislator introduced the right for employees working remotely to disconnect from the company tools and systems used to carry out their work. Notably, this only recognizes the right to disconnect for employees on the “smart working” model (i.e., employees alternating between working in the office and remotely as opposed to someone on a teleworking contract and based permanently at home), and there are currently no sanctions for non-compliance in place.

In the US, although some companies have implemented programs like this experimentally, we are not aware of any analyses of the efficacy of these programs. 

Potential issues?

While the above measures show what several countries outside the US are doing to try to address employee work/life balance , there are also certain factors to be considered given the current trends in global workplaces:

Will a right to disconnect actually benefit employees?

  • A right to disconnect is not the same as an obligation to disconnect. For example in the UK, it can be argued that working time legislation has little impact on long working hour cultures with many employees opting out and few willing to complain that a right has been breached.
  • Legislation may actually reduce flexibility by introducing rigid working hours and could increase pressure to meet deadlines by a hard stop finish time. Employees may have become accustomed to choosing different working hours every day as a result of the pandemic. Being uncontactable during evenings and weekends may mean employees need to be "always on" during normal working hours, whereas many might favor greater flexibility and autonomy over their own working hours especially when care obligations are triggered.

Global companies: the practical  concerns

  • The idea of employees being able to completely disconnect outside of working hours may be impractical. Certain industries expect employees to work outside of their normal working hours, for example, to service paying clients. Additionally, some employment contracts may even require employees to work “the hours necessary to perform their duties.”
  • Any right to disconnect will need to take into account the global reach of international companies and recognize that employees work across different time zones and legal landscapes. Completely switching off may not be practical and could disrupt business operations.

Although the remote work practices temporarily adopted in response to the Covid-19 pandemic have created an unexpected opportunity to roll out more flexible work arrangements on a permanent basis going forward, the “new normal” reinforces existing concerns over employees being permanently connected. Some countries have taken the view that legislation is needed in order to help employees to “switch off.” Whether this is an effective approach remains to be seen, but in any event, global employers will want to ensure that the benefits of greater flexibility are not jeopardized by excessive working hours and burn-out situations. Finding the right balance will be key.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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