September 26, 2021

Volume XI, Number 269

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September 24, 2021

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Proposed Right to Disconnect Lacks Joined-Up Thinking (UK)

BBC News Online reported last week a call by trade union Prospect for the Government to legislate to “ban out of hours emails from bosses” or, beneath the headline, to “ban bosses from routinely emailing or calling outside set working hours“.  This looks like the proposed introduction into English law of the “right to disconnect” seen in a number of other countries, but for the reasons below, there seems little or no chance of its making the cut for the Employment Bill due out later this year.

Prospect’s Guidance to Union Activists as issued last month and now available on its website clearly represents the product of some considerable thought on the question, running to 18 pages of statistics, surveys, suggestions and overseas practice, which makes it a reasonably useful source of reference if you want to know more on this topic.  Most importantly, it is also unusually balanced for trade union guidance, recognizing that there are advantages as well as disadvantages to the ability to email and be emailed out of hours.  As a result, after some initially uncompromising language, you find on page 12 of the guidance that despite the BBC headlines, Prospect doesn’t actually want the Government to ban anything, only to introduce a French-style obligation on employers to consult annually on ground-rules about out of hours contact with employees, as set out here.

The Guidance notes CIPD reports that 30% of employees see remote access to the workplace as empowering, 41% as its helping them to manage their workloads, and 51% as its assisting them to work flexibly.  On the face of it, whether you work remotely has little connection with whether you are concerned by out of hours emails from your managers.  The link arises through studies showing that the line between home and work, on-time and off-time, is significantly blurred by homeworking, all the more so if your workplace is not a physically distinct room but the same place where you eat or relax or play with the children.  Prospect’s Guidance notes the attendant risks for workers – unrewarded overtime, work intensity, always-on culture, mental health and diversity impacts and the rather less convincing “remote or digital bullying” and “growth in monitoring or surveillance technology”.

Hence the suggestion of some form of “right to disconnect”, but what would that right look like in the first place?  Prospect’s starter for 10 is the seemingly unqualified right “not to receive or answer any work-related emails, calls or messages outside employees’ normal working hours“.  However, it then immediately softens that position by quoting three principles used in the Irish approach to this question:

  • the right to not routinely perform work outside normal working hours;

  • the right not to be penalized for refusing to attend to work matters outside those hours; and

  • the duty to respect another’s right to disconnect by not routinely calling or emailing them outside those hours.

There is no attempt in any of this to define “routinely”, nor indeed to suggest what counts as “normal working hours” if your contract contains the very usual obligation to do, say, 9-to-5 “plus such other hours as are reasonably required for the proper performance of your duties” and your pay reflects that obligation.  It cannot realistically require a total black-out on communications from your manager because then you would not receive the non-routine emails which genuinely do need dealing with out of hours. There is also no light shed on what is meant by “penalizing” – if it means being subject to disciplinary action, then usually fair enough, but if it is a reference to not being subject to any disadvantage relative to those who are willing to work at after hours, then that is a different thing. It could not be intended by Prospect that an employer could not reward those who worked harder for it by giving up some of their evenings, whether that reward was by money or opportunity or advancement – indeed, one of its concerns relates expressly to unpaid overtime so it could hardly complain if that extra time led to some extra benefit in return.

And what about all the arguments in favor of being able to work out of hours – less stress, greater flexibility, better preparedness and less on your desk for the day ahead?  The Guidance notes a Canadian paper recognizing that some employers may favor employees who respond to work-related communications outside working hours as a proxy for commitment or merit, which may prejudice those who cannot remain connected after hours due to family responsibilities, most often women.  Agreed, but that might make giving those people the ability to deal with work matters after dealing with the children all the more valuable.  How do we deal with customer emails out of hours where speed of response may be key to gaining or retaining the business?  Or colleagues operating in different time zones? What about employees who go home without finishing something important and the manager needs their input to find it?

Any form of mandatory provision in this respect also begs the bigger question around all this – is it reasonable or sensible to hobble all employees’ ability to work out of hours, willingly or not, solely in order to deny the few who cannot do so any sense of disadvantage.  Do we suppress the ambition or dedication of employees who want to stand out from their peers by a faster response, merely because someone else may not want or be able to do that?  As soon as the system allows anyone to gain (or even think that they may gain) career advantage by going that extra mile at night, there will be pressure to do it, not necessarily from Prospect’s faceless “bosses” but from the employees themselves.  It would never be possible to legislate away the decisions people make for themselves about what their work requires of them and what they are prepared to give to it, nor the fact that some can and will, entirely unprompted, give more than others.

Prospect itself admits that there can be no one-size-fits-all solution to this, a concession which by itself probably scuppers the right to disconnect’s chances in the legislature, even before the scorn which has been politely but unmistakably poured over the idea by the CIPD, employers and employment lawyers.  Banning anything of this sort is far too blunt an instrument for the variety and complexity of today’s working practices, especially because a fair part of the problem here is generated not by unthinking bosses detonating email grenades in employees’ homes late at night, but by the employees themselves.  The BBC Online piece refers to bank worker Omar — “When you are in the office“, he says “there is the journey in, buying a coffee, chatting to a colleague and sitting down at your desk at 8.30 or 9am“.  By contrast, when you are working from home “you are on your laptop before breakfast“.  Then pull yourself together, Omar, and just stop it.  Do something self-indulgent with the saved journey time, open your laptop at 8.30am and you are away, rested, fed, on time and ready to do a full day’s work.

Even if the BBC Online headline were true, which it is not, there is therefore very unlikely to be any legal right to disconnect included in the Employment Bill, nor even any greater specific statutory duty to talk about it with staff than is already implied via the existing Health and Safety legislation.  However, that does not mean at all that the principles behind Prospect’s concerns aren’t valid, or that employers cannot earn themselves considerable goodwill or ESG-points both within and outside the business through being seen to consider it. That may mean little more than reminding employees at all levels (this is not just a “bosses” problem) of the need to be mindful of others’ working hours or days in choosing when emails are sent or calls made and responses expected, and certainly does not have to go anywhere near system changes to shut down servers at particular points or disciplinary action as soon as a “boss” chases for something. A visible willingness to engage on this may well be helpful to the business in defending employee claims for mental health or other injury through alleged overwork or stress.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 159
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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