UK Update: Labour’s proposals for a “right to switch off” explained

The Labour Party’s plans to restrict out-of-hours work communications could change how the UK works.

In an interview with the Financial Times published on 12 May 2023, the Deputy Leader of the Labour Party and Shadow Secretary for the Future of Work laid out plans for an employee “right to switch off” to be included in the Party’s next manifesto. While the bid to emulate similar protections in countries like France is only one in a raft of proposals to alter the UK’s employment rights framework as part of their “New Deal for Working People”, the manifesto commitment is a notably firm statement of intent. With a general election due before January 2025, and the Labour Party enjoying sustained polling leads, this potentially radical change to current working practices is worth examining.

With the Party’s stated intention to learn from countries where such a right has been introduced, the content of a UK “right to switch off” will be informed by its operation elsewhere. In countries across Europe including France, Italy, and Spain, employers are restricted from work-related communications with their staff members by telephone or email beyond their normal working hours. German workers have enjoyed similar rights for decades although these have instead been founded in large scale collective agreements. Globally, in some highly regulated sectors like financial services, employees can even be prevented from accessing work systems while they are on annual leave. The motivation for this is somewhat different, however, with the aim of preventing staff who have been engaged in wrongdoing or fraud covering their tracks from those covering their workload in their absence. While each iteration of the right has differed, it has generally been animated with only a light touch regulatory approach. This has meant that the impetus is largely on employees who enjoy such a right to bring a case against their employer if they feel they have suffered any detriment or penalisation for not monitoring, replying, or acting on employer communications during their non-work hours. While cases have been rare, in 2018 Rentokil was ordered to pay €60,000 in the French courts after they failed to respect a director’s right to disconnect as he had asked to keep his phone on in case of emergencies.

An unqualified right would appear intractable with the working patterns and demands of entire industries like care and many professional services. Raynor did indicate that their reforms would be cognisant of this and would cater for industry-specific circumstances and out-of-hours contact that is fairly required. It would thus seem likely that the light-touch approach seen elsewhere would be emulated.

A fundamental challenge to the “right to switch off” is its compatibility with the drive for increasingly flexible working hours. With changing attitudes and remote working now viable for many, fewer workers and work places have entrenched working hours beyond which a “right to switch off” could be implemented. Any legislative change, or indeed company policy, would have to balance restricting the hours they allow work to take place, with the flexibility that staff have pursued and valued.

A “right to switch off” for UK workers could thus require an uneasy compromise with existing working practises: increasing the likelihood that change would not be immediate. Employers would be advised to monitor this policy space and share their views if a future government consults on such changes. Regardless of whether such proposals materialise, they do reflect the real challenge of employee burnout and employers would be wise to consider how to combat this. Alternative measures can include:

Preventing or limiting employee access to work communications while on annual leave;
Implementing and communicating clear policies and expectations on employee availability;
Ensuring senior member of staff are role models in following company policies on work outside normal hours;
Providing training and tools for employees to understand and protect their own mental health; and
Fostering a culture where stress and other mental health issues can discussed and supported.

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.

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