The right to disconnect – sticking plaster or silver bullet?

Across the pond in Europe, it’s getting more and more likely that there will be a EU-wide expectation (backed up by law), that employees have a ‘right to disconnect’. In fact, members of the EU want this right to be as fundamental to the workplace as the right to have proper holidays, fair pay or basic health and safety. Last year MEPs voted 472 in favor (versus 126 against), for the EU Commission to propose a law that enables those who work digitally to disconnect outside their working hours.

To those in the know, this wasn’t a surprise. The vote followed moves already made by several individual countries to stop the inexorable creep of work (see box below). But the big question it throws up is this: Will it mean US multinationals – who have operations abroad – will now need to change their own working practices and prevent out of hours contact? If so, some could argue this will create demand for change by employees in the US. But there is also a more fundamental question that underlies all of this: Does a “right to disconnect” really do anything serious to tackle work-life balance issues?

Where we are now?

Let’s wind back a bit first. Although the EU directive is an attempt to apply some uniformity, in fact the genie is already out of the bottle in a number of countries both in Europe and beyond. France, Spain, Belgium, and Italy among others have already established a statutory “right to disconnect” for employees. And this is not only a European theme, with new rules in place or following shortly in disparate locations such as Canada (Ontario) and the Philippines.

What is the “right to disconnect”?

The range of approaches taken across these disparate countries shows lawmakers are struggling to strike a balance between the freedom for employers and employees to agree ways of working that best suit them, versus enforcing minimum standards regardless of the work sector and the employee’s own preference.

Will a right to disconnect actually benefit employees?

A right to disconnect is not the same as an obligation to disconnect. The UK has had limits on working hours since 1998, but these are routinely waived or disregarded, and it has both long hours and low productivity – with very few claims brought for breach of the working hours limits.

Most crucially, there are concerns that right to disconnect legislation may actually reduce flexibility by introducing rigid working hours. It could also increase pressure to meet deadlines by a hard stop finish time.

We have to remember that since COVID-19, many employees now rely on flexibility to work evenings and weekends to balance their personal commitments. And many workplace cultures continue to reward availability and long hours, especially in global organizations where managers work in different time zones and with different expectations of working hours, including widely different rights to vacation.

Work-life balance: the secret weapon to winning the war for talent

Of course, employers will be concerned about compliance. But isn’t there a bigger picture here? The right to “switch off” is just one tool to address the real concerns about work-life balance as employees increasingly work anytime, anywhere.

There is no doubt that the time we are in now is the right moment for employers to look afresh at work and the tools and messaging they give employees, of which formally “disconnecting” is only one. But perhaps other approaches would better achieve the goal and help employers to differentiate themselves in a crowded recruitment market. For example:

  • Setting clear guidelines at manager level, including where there are cross-border reporting lines and managers are in the U.S. Managers right up the chain should be mindful of time zone differences, and should plan meetings only within the working day for all the participants, and should not expect responses to messages out of working hours or in a time close to the end of a reasonable working day, other than when there is a particular urgency.
  • Having a policy that makes it clear that recipients of out-of-hours emails can assume they can respond the following day. Here employees need to know that the company will not impose any disciplinary action for being unavailable outside of working hours, unless the employee has a particular “cover” role or an emergency comes up.
  • Utilizing a range of IT tools that are also available to lift the burden – for example, setting IT tools that delete “group” emails from an inbox when an employee is on leave, or which prevents emails from being sent to mobile phones after hours.
  • Where it fits with the employer’s model and the job type, looking at a four-day compressed working week. This has been highly successful in Iceland, which has adopted it wholesale. It has has been formally tested in a number of other European employers too since COVID-19, and is proposed to become law in Belgium.

There will be no easy or single solution here. But employers who help their employees to find the right balance will clearly be at a major advantage in winning the talent war.

Around the world – The right to disconnect globally:

At the stricter end of the scale proposed new legislation in the Philippines will require employers to have a policy with rules on hours of “disconnection.” It will protect employees against discipline for refusal to work out of hours, with a fine for time worked and for penalizing workers who enforce the right.

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France has, since 2016, had a legal obligation to allow a right to disconnect, principally applicable to employers with a headcount of 50+. The law pushes the “hard thinking” to employers and trade unions, to negotiate an agreement each year with union representatives on the right to disconnect outside working hours. The law sets the broad aim (“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”), but gives no steer on how these should be managed. If they cannot reach agreement, they must adopt a “charter” after consulting their internal works council. The charter would typically provide for measures to monitor employees’ workload and training/information measures.

The right is not audited, 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.

Spain and Belgium take a similar approach of passing the responsibility to employers, to consult with their internal representatives (Spain)/Health and Safety Committee (Belgium) about “digitally disconnecting.” In Belgium and Spain, the outcome should then be confirmed in company work rules, in a collective bargaining agreement or a policy so it would then be directly enforceable by employees. But there are no rules as to what that outcome should be.

Ireland recently introduced a new Code of Practice, which includes making it clear to employees that there is no expectation of responding to messages out of hours. The Code is not legally binding, and there are no direct penalties for breach, but we expect breach of the Code to be accepted as evidence in burnout or excessive working hours claims.

Italy limits to the right to disconnect only for employees on a “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.

And in Ontario, Canada, companies with headcount of 25+ in one workplace (30+ in two workplaces), have to introduce a right to disconnect policy from June 2022.

Tessa Cranfield is a partner in Seyfarth’s London office where she is a member of the firm’s International Employment Law practice group.

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