Employment: concept of ‘right to disconnect’ given new relevance by Covid-19

Lucy TrevelyanFriday 27 March 2020

Caroline André-Hesse, Conference Content Officer for the IBA Employment and Industrial Relations Law Committee and a partner at AyacheSalama, says the right to disconnect enables a better work-life balance for employees. She says it also helps protect the employer against overtime payment claims raised by employees who have, of their own volition, decided to work outside of their contractual hours and who then claim further overtime payments.

Any right to disconnect needs to consider the global workplace and instances where international businesses and their employees work across different time zones, says Jonathan Holden, Head of Employment at Forbes Solicitors.

‘A new law in the UK would need to also practically consider how it accommodates different shift patterns, what happens during a work-related crisis or emergency and just what constitutes sufficient reason for an employer to contact an employee during their period of disconnect and how they practically do so,’ says Holden.

‘Much consideration also needs to be given to what happens where an employee flouts their right and actively connects with their digital work network or other employees,’ he adds.

The most likely way of the UK enforcing the legislation would be to treat it as a right conferred on employees, says James Simpson, Head of Employment at Blaser Mills Law. ‘Employees would then have a right to complain to an employment tribunal if the right was being infringed, with surrounding protections if an employee was treated detrimentally for complaining about a breach.’

‘In extreme cases, an employee could also use it as a ground for constructive dismissal,’ adds Simpson. ‘The big problem for employers would be how it is policed if employees do not comply.’

After three years of the law being in effect in France, André-Hesse observes difficulties in its enforcement. ‘Even if it is stated that employees have a right to disconnect their devices, are encouraged to do so and avoid answering emails, working late or during weekends and vacations, it remains difficult to ensure it is effectively the case and that they are not asked to work by their manager even if it is not a matter of absolute emergency,’ she says.

Some enforcement action has been taken in France, however. In 2018 the French wing of Rentokil Initial was ordered to pay €60,000 because they failed to respect an employee’s right to disconnect, having forced him to permanently leave his telephone on to respond to work requests.

One of the biggest impacts for companies would be the loss of employees doing unpaid overtime, says Holden. This exists in many different guises, from employees catching up on emails on the daily commute to workers staying late in the office to finish a project.

‘Management will need to realistically review current workloads and then adjust expectations according to how much work is delivered via unpaid overtime’, explains Holden. ‘They will also have to develop policies to accommodate unforeseen circumstances where working late is deemed critical to meet a deadline.’

Customer or client expectations would need to be managed. ‘Service levels and service level agreements may need to be renegotiated and/or additional individuals provided on a rota basis if a 24/7 service is required,’ says Claire Brook, an employment law partner at Aaron & Partners.

Employers would want to avoid situations where a customer or client does not understand why their main point of contact is not responding to an ‘urgent’ email or text. ‘The ramifications for employers could be a disruption of the service, leading to the potential of clients simply going elsewhere,’ adds Brook.

David Sheppard, a senior associate at Capital Law, adds that in a highly competitive market, unless there is a wholesale cultural shift, any business restricted in dealing with customer or client demands arising outside of hours would quickly lose those customers.

For employees themselves, to create restrictions on receiving, reading and replying to work communications can be counter-productive, says Sheppard. He refers to research published in January by the University of Sussex Business School, which found that any email ban could have a damaging effect on mental health. The research suggested it would limit employees’ ability to achieve objectives, the removal of control would cause further stress and a ban would be particularly harmful for employees with high levels of anxiety.

Another issue is how the right to disconnect can be extended to gig economy workers. André-Hesse does not see how it can. ‘Such right – that is strictly linked to employment contracts and to the existence of a link of subordination – may in fact demonstrate that the independent worker is in reality bound by an employment contract, which is a significant risk for their co-contractor,’ she explains.

If the right was introduced in the UK and made into a human right, as it currently operates in France, and it was found to be flawed in any way, it would be exceptionally difficult to remove, says Holden. ‘Notwithstanding, it is arguably an unwritten agreed human right that everyone is entitled to the right to disconnect to some degree. The level that this right currently operates at within various companies will no doubt differ dramatically.’