The right to disconnect – is this the future for employee mental health?

Written by: Kendel Shepherd
Published on: 23 Dec 2021
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Image: Peera.P / Adobe Stock phone

Image: © Peera.P / Adobe Stock

With the easing of COVID‑19 restrictions and people seeing a light at the end of the very long lockdown tunnel, attention is moving to how we get back to “normal” – or as some people phrase it, “the new normal”.

Although some have changed to a more flexible, agile way of working, employers need to be mindful that some tweaks are essential to these new working practices to ensure employee mental health is maintained and burnout is avoided.

A LinkedIn survey last year in partnership with the Mental Health Foundation found a loss of boundaries between home and work-life, and additional work-based pressures meant an average of 28 hours extra each month were worked by those working from home during the pandemic.

In December 2019 the Queen’s Speech promised a new Employment Bill – and winter 2021 may well be when this is eventually published following delays due to Brexit and COVID.

So, what is this elusive right to disconnect?

Essentially, it would be a legal right for employees to disconnect from their work and electronic work devices to improve their mental health. The idea being that companies will have a legal obligation to negotiate with their staff and agree rules about when they cannot be contacted for work purposes. This “right to disconnect” would also apply to contact during leave, as well as outside of working hours.

Some unions, think tanks and employees are keen on this idea, and welcome the prospect of a reinforcement of a distinction between work and home life. Equally, the suggestion of a new right has seen contrasting opinion, and commentary stating that restricting when people can and cannot be contacted is counterintuitive to flexible working.

What could the right look like?

Ireland introduced a right to disconnect in April (2021) in its Right to Disconnect Code of Practice, which requires employers to proactively engage with employees, or their trade union or employee representatives, to develop a “right to disconnect” policy. The policy should consider the needs of the business and its workforce; be reviewed annually; and be referenced in the employee’s employment terms and any induction process.

Within the code, the right to disconnect has three elements:

  • the right of an employee to not routinely perform work outside normal working hours
  • the right to not be penalised for refusing to attend to work matters outside of normal working hours
  • the duty to respect another person’s right to disconnect – for example, by not routinely contacting them outside of normal working hours

Although the code is guidance and failure to implement its measure is not an offence, the Irish court and tribunal service allows code of practice failures to be admissible in evidence during proceedings.

And in France it has been law since 2017 that companies with more than 50 employees are required to have a charter, negotiated annually, detailing periods when employees should not send or answer emails. Italy and Spain promptly followed in France’s footsteps to implement similar laws to ensure respect for resting periods, holidays and personal privacy. In Germany, unions have worked alongside companies to develop “a minimum intervention in leisure time policy”.

The think-tank Autonomy recently published its report, The Right to Disconnect, in August 2021. The report recommends that a legal right to disconnect be introduced through amendments to the Employment Rights Act 1996, which compels companies not to “require a worker… to monitor or respond to any work-related communications, or to carry out any work, outside the worker’s agreed working hours”.

What can employers do?

Even if the right to disconnect is not published in the Employment Bill, employers could implement their own boundaries for employees about contacting one another outside of normal working hours. Of course, one size will not fit all, and occasion may call for out-of-hours contact. But now is as good a time as any to start a dialogue.

In fact, a recent survey by tech firm Owl Labs of 500 UK business leaders found one in four employers is considering introducing “right to disconnect” policies to help staff balance their work and home life, and a further 32 per cent of employers were preparing to develop new HR policies on disconnecting.

So, although the right may not legally be introduced in the Employment Bill, a genuine feeling exists that some employers are considering introducing something proactively for the benefit of staff.

For employers that are looking at “new normal” ways of working, several ways exist to kick-start a dialogue when planning a realistic post-COVID hybrid way of working.

Firstly, in terms of email sent after hours, messages could be appending with “For the morning” or “For tomorrow” to signify that the item does not need to be actioned that evening.

Next, email traffic could be limited outside of working hours – either by automatically retaining email in the outbox until the morning or setting up a send at 9am functionality.

Thirdly, employers could consider implementing an OOH contact policy that indicates core hours when contact should not be made.

And lastly, employers could place email footers that state boundaries of when employees can and cannot be contacted, or when they will or will not be available.

In summary

It’s obvious that the world has changed markedly in the past 18 months – and while employees need to be more accommodating, employers need to be more mindful of employee needs and their mental health.

The law may change at some point in the future to force employers’ hands, but that doesn’t preclude them from putting processes in place now.