Employment: Is a "right to disconnect" on the horizon?

In December, the Scottish Government committed to undertaking “meaningful discussions” on providing its employees with a “right to disconnect”. The announcement comes at a time when the boundaries between work and home life have become blurred or, in some cases, feel like they have almost disappeared.

The link between this blurring and “burnout culture” is being made, as well as the detrimental impact on mental health and wellbeing. Many have reported that as their home has become their office, they have struggled to truly “disconnect” outside their work hours. This issue is unlikely to disappear, assuming of course that working from home remains a feature in Scotland even as we move beyond the pandemic – and all the signs are that where jobs can be done remotely, there has been a permanent transition to hybrid working in some shape or form.

The Scottish Government’s announcement follows a number of governments and employers around the world, who have placed increasing focus on implementing successful “right to disconnect” policies.

What is the “right to disconnect”?

This right focuses on enabling workers to disconnect from their jobs effectively outside their contractual working hours. A key feature is giving employees the right not to engage with work correspondence (including emails, telephone calls and instant messaging) outside these hours. The right not only removes the need for an immediate response to communications outside contractual hours but also protects employees from being subjected to detriments by their employers for exercising this right.

Different countries have taken different approaches on implementing “right to disconnect” policies even before the pandemic. In the past five years, France, Italy and Spain have all introduced legislation that grants workers the right not to respond to work-related communications after their core hours. Interestingly, this applies to both the public and private sectors. Last year, Ireland brought in a specific legislative code to protect all workers, including those who work remotely.

In February 2022, Belgium will become the latest country to follow their lead, legislating that civil servants may only be contacted “in the event of exceptional and unforeseen circumstances requiring action that cannot wait until the next working period”. Taking a different tack, in Germany companies rather than government have implemented changes, with stakeholders of several key German companies proactively looking at policies that support and safeguard an employee’s ability to disconnect.

The Scottish Government made its commitment towards the “right to disconnect” in its public sector pay policy document for 2022-23. Within this policy, it introduced a “requirement for all [public sector] employers to have meaningful discussions with staff representatives about the Right to Disconnect for all staff, discouraging an ‘always-on’ culture”. The policy frames this as “providing a balance between the opportunities and flexibility offered by technology and our new ways of working to support the need for staff to feel able to switch off from work”.

For now, this is confined to Government employees, and employment law is, of course, a reserved matter under the Scotland Act 1998. The UK Government has not given any indication that it plans to legislate in this area. However, the Trades Union Congress included a call for a statutory right to disconnect in its 2021 manifesto. The topic is therefore likely to remain on the agenda, especially in the current climate.

What should employers do?

The Government’s announcement is one for clients and practitioners alike to watch with interest. Pending any formal legislative change, proactive employers may wish to take the lead of German businesses and consider their own approach to the “right to disconnect”. There is a particular incentive to do so in the current context of mass burnout and the “Great Resignation” placing increasing strain on employment relations. Many have attributed these issues to an increasing decline in work-life balance as a result of hybrid or homeworking.

This is particularly pronounced in the legal industry. In a survey of 1,700 legal professionals in the UK and Ireland by LawCare last year, 69% of participants said they had experienced mental ill-health in the previous 12 months, and just under 60% reported suffering from anxiety, fatigue and depression.

Employers could consider proactively engaging with employees’ feelings on the “right to disconnect” and agreeing boundaries as part of their general wellbeing efforts. The “right to disconnect” presents advantages to employees and employers. Establishing a clear work-life balance can increase employee satisfaction and reduce staff burnout, which can in turn aid productivity and the retention of talent. Employers could engage with this by reviewing current policies and practices on communications outside work hours. They could also gauge employees’ experiences through informal feedback to evaluate whether employees would welcome such changes.

As we continue to transition towards hybrid working models, employers could also consider reviewing their employee welfare support programmes and communications to ensure that employees feel adequately supported when working remotely. This proactive stance will also put employers in a good position should any legislative change later follow.