Should employees have a legal right to disconnect?

9 Sep 2021 By David Sheppard

David Sheppard explores how enforcing working time through legislation could impact workplace culture

Legally, an employee’s working time is primarily governed by their contract of employment, which will usually state their normal working days and hours. But for salaried office-based jobs, most modern contracts give employers a contractual right to require employees to work more than their normal hours to meet the needs of the business, for no additional pay or time off.

However, employees’ working time is also subject to statutory limits under the Working Time Regulations 1998 for health and safety purposes. Under these regulations, employees cannot have an average working time of more than 48 hours per week calculated over a 17-week reference period. In reality though, most employers with pre-existing long-hours cultures will expect (although they cannot insist) employees to agree to opt out of this limit in their working time at the commencement of their employment.

Employers who don’t comply with these regulations certainly expose themselves to costly claims. But even where the employer complies, the amount of working time they can legally require remains considerable. So, even if their hours do not breach these limits or their contract of employment, employees may still feel significant stress from the blurring of work and personal life.

But when it comes to employers’ duty of care and out-of-hours emails, it’s a slightly different story. Under common law and under health and safety legislation, employers owe a duty of care towards their employees to ensure a safe working environment, which by extension would include the level of demands and expectations to deal with emails out of hours.

If the additional demands are causing or are likely to cause an employee ill health, then they would owe a duty of care to ensure working expectations are adjusted and managed reasonably to avoid it. 

If an employer breaches this duty of care and an employee suffers a physical or psychological injury, they could bring an injury at work claim, where the member of staff may potentially resign and bring a case for constructive unfair dismissal. 

However, the level of work which can be put on an employee will vary from person to person and will be adjusted on a case-by-case basis.

The proposals for a statutory right to disconnect arising from the blurred lines between life and work during the pandemic (and beyond), would be a potentially significant change in working relationships, as it would set clear parameters for what is considered working time and expectations which do not exist within typical contracts of employment and the 1998 regulation. 

Such a move could potentially create working cultures where late or early working activity is frowned upon as opposed to being celebrated, with the obvious benefits that would have for wellbeing.

However, the practical effect of any legislation will very much depend on the wording and extent of exceptions to be disconnected – will there be a provision to opt out, or exceptions for busy or emergency periods? The 1998 regulation has not ended long hour cultures; long hours remain very much the norm in many workplaces, and unless any new legislation has limited exceptions and easier ways of enforcement, it is difficult to see how a new statutory right to disconnect alone would result in a significant cultural change.

David Sheppard is an employment lawyer at Capital Law

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