Labour's 'Right to Switch Off': Exploring the Impact of Potential New Work-Life Balance Legislation

The Making Work Pay document says as follows on the right to switch off:

“The pandemic has led to a step change in flexible and remote working practices in many workplaces, which offer significant opportunities to fit work around family life. However, it has also inadvertently blurred the lines between work and home life.

 

Good employers understand that for workers to stay motivated and resilient, they need to be able to “switch off” and that a culture of presenteeism is damaging to morale and productivity. Equally, workers know that there are circumstances where their employer may need to contact them, and some value the ability to work outside of conventional working patterns. Many other countries have already taken action to promote healthier working practices that ultimately end up with a more productive and motivated workforce. Labour will also act to promote a positive work-life balance for all workers.

 

We will bring in the “right to switch off”, so working from home does not result in homes turning into 24/7 offices. We will follow similar models to those that are already in place in Ireland and Belgium, giving workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.”

The Times newspaper reported over the weekend that the Government is considering an approach where a code of practice would be introduced, detailing the right to switch off. The link to the article can be found here.

By way of main points:

• The Times understands that “employers who repeatedly breach an agreement could have thousands of pounds added to their compensation bill if they are taken to tribunal”.

• A Government source has said that the details of what “right to switch off” policies would look like were still being worked out. “This is an ongoing discussion, we’ve not settled on a position as yet [but] it has to be specific to each workplace and therefore it has to be something that businesses and their workforce agree among themselves rather than a diktat – and we’re conscious of the disproportionate impacts of these sort of policies on smaller business, that will factor in to how we draft it.”

• The article goes on to quote the Government source which says, “the key point here is that we will not be imposing things on businesses that they have not agreed to.”

• It is “unlikely” there would be a freestanding right to bring a claim at the Employment Tribunal for breach of the code, “employees would be able to use it as an aggravating factor in a broader claim, improving their chances of winning the claim as well as increasing their potential compensation.”

There are still questions about how this will work in practice:

• There seems to be reference throughout to “policies” – so it is not clear if a breach of an internal policy and/or the anticipated code of practice would both be taken into account when assessing any compensatory uplift. I think in any event, employers will need a right to switch off policy in order to assist in defending any action which may be contemplated by employees.

• We are still unclear on what any code of practice will mandate.

• It is assumed the level of uplift would be the same as a failure to follow the Acas Code of Practice on disciplinary and grievance procedures – but we will need to wait and see what level of uplift may apply.

What do other countries have in place for the “right to switch off”

Ireland

Employers and employees develop “right to disconnect” policies setting out the normal working hours of employees and the circumstances in which they can be contacted out of hours. These are not legally binding but breaches can be used in claims over employment rights.

Belgium

The policy is back by legislation and applied to businesses employing more than 20 people and all government employees. Failing to follow the code is not an offence in its own right.

Portugal

The right to disconnect is legally binding, with the potential for businesses to be given fines of up to 10,000 euros.