Striking a balance: the right to disconnect

With technology playing an ever-increasing role in the workplace and the rapid growth in all forms of digital communications, many employers no longer face practical obstacles to facilitating employees working outside their normal working hours.

But as practical obstacles fall away, governments are weighing up the benefits of increased productivity for employers with the interference that this can bring in workers’ private lives. This year EU parliamentarians and global trade unions have called for employees to be given the right to digitally disconnect from work outside of working hours. Jurisdictions, including France, Spain and Ireland, have already acted to support employees to disengage from work, a trend also reflected in some industry and company workplace agreements.

Not all employees have welcomed the measures implemented by organisations to help them switch off and employers are facing practical challenges when reconciling the desire for workplace flexibility with a respect for appropriate boundaries.

Flexible work leading to work without boundaries?

To support a better work-life balance and workplace inclusiveness, employers have been encouraged to create agile job arrangements in terms of where, when and how individuals work. Employees have benefited from this flexibility when managing their work-life balance.

However, flexible work can turn into work without boundaries and an ‘always on’ culture. Remote working and Covid-19 accelerated these changes, shining a light on the potential negative mental health consequences for employees and employers.

A right to disconnect: the legal context

A right to disconnect already exists directly or indirectly in some local legislation and collective agreements. Some companies have also adopted policies and practices to limit digital connectivity blurring work-life boundaries. For example, it has been reported that some German car manufacturers have frozen email servers overnight and imposed restrictions on employees accessing emails during holidays. In Spain, an insurance company formally recognised employees’ right to turn off their mobile phones outside of working hours. However, the existence of a right to disconnect is a long way from being widespread globally.

What is the right to disconnect?

In broad terms, it is a right to refrain from engaging in routine (not occasional) work-related electronic communication during non-work hours. Where the right exists, those exercising it can be confident that they are protected against negative repercussions such as disciplinary action.

How is the right to disconnect regulated under employment law?

The right to disconnect may be directly or indirectly regulated by employment law. For example, across the EU (and in the UK) minimum working time standards apply but vary from country to country. These address working time, maximum working hours, annual leave and minimum daily and weekly rest periods. Case law from the European Court of Justice includes decisions on stand-by time and on the need for employers to set up systems to enable daily working time to be measured. Irish case law awarded compensation to an employee who was expected to respond to emails after work, breaching the 48-hour week.

Globally, workplace health and safety regulation will typically apply and family leave rights have been introduced or strengthened, as governments recognise their role in supporting employees to reconcile their work and personal lives.

In terms of directly regulating the right to disconnect, a small number of countries, mainly in Europe, have acted. France is the leading example. A right to disconnect was implemented in 2017, requiring companies with 50 employees or more to establish a dialogue between employer and employees to regulate the use of digital tools beyond working hours, to specify employees’ rights to switch off, and to ensure these rights are enforced. All collective agreements must include measures allowing employees to preserve rest breaks and their private life. In 2018, the Supreme Court ordered an employer to pay €60,000 compensation to a former employee for failing to respect the right to disconnect.

In April 2021, the Republic of Ireland decided against introducing legislation but instead adopted a new Code of Practice on the right to disconnect, setting out good practices that employers should follow to respect existing working time limits and encouraging them to adopt policies which support employees’ ability to disconnect from work. A failure to comply does not render an employer liable to proceedings. However, it would be admissible in evidence in claims involving issues covered by Code.

In Spain, data protection legislation introduced a limited right to disconnect in order to ensure respect for employees’ rest, leave and holidays, as well as for their personal and family privacy.

Outside Europe, some countries have proposed, or introduced, arrangements to address the right to disconnect, including Chile, Argentina and Canada.

How should employers respond?

When acting to support employees to switch off from work, employers should balance the needs of all employees.

For example, introducing systems which require employees to disconnect after core working hours may also decrease employee autonomy to work flexibly. Some employers have encountered a backlash from those employees who prefer flexible hours to manage their caring responsibilities or disabilities. Others have encountered resistance from employees concerned at a potential loss of overtime.

Wary of unintended consequences from such changes, some employers are taking a more nuanced approach – working with their employees to understand the issues involved, how they can be addressed and how to embed wellbeing more broadly in the organisational culture. For example, some are:

n Implementing technical measures to understand the extent of, and reasons for, routine out of hours working – such as setting up alert systems when employees connect more than a certain number of times while on holiday.

  • Engaging with workers to draw up communications, training or policies which clarify expectations, for example, on: taking breaks, holidays and daily rest; work availability and handling workloads; performance goals and measurements; working across time zones; how employees can raise concerns.
  • Supporting line managers to build consistent good practice, such as: when responding to employees who are unable to work outside of normal working hours; contacting employees out of hours; recognising the value of role modelling.
  • Providing employees with training and tools: to manage their own working time; to protect their own mental health; to respect their colleagues’ right to disconnect.
  • Embedding a culture where mental health issues are destigmatised and supported in the workplace.

Inevitably, an employer’s response must also balance the needs of the organisation. Workflows, unforeseen circumstances and service level expectations should be addressed as part of the communication process.

In summary, technological advances mean that workers are increasingly contactable and accessible. While there is much to celebrate with new ways of working, there are also challenges which employers should address. This is underlined by an EU report which estimates the cost to employers, from employee mental health issues, at €240bn. Furthermore, failing to act risks workplace safety, staff morale and retention problems, as well as legal and reputational risks.