Before the pandemic working from home was mainly the preserve of those who since the inception of the lap-top and WIFI combination could work remotely from anywhere (Brexit aside). It seemed the ideal lifestyle providing freedom, flexibility and autonomy to those lucky enough to be either self-employed or working for those who had the foresight to encourage such working arrangements.
A few years on many who never would have seen themselves working from home still are and not everyone is thriving. Home and work-life has been blurred as never before and whilst it may feel like a privilege to work from home it certainly isn’t if you feel like you are “living at work.”
The pandemic has thrust many into a new way of working, which, when combined with the ability of technology to operate round the clock has led many to burn out.
Now, emails can be sent at any time of day or night and a response is demanded likewise. The pace of work has increased and the length of time we spend doing it has likewise. The ILO reports that the number of people working long hours is increasing, and currently stands at 9% of the total global population. This trend puts even more people at risk of work-related disability and early death.
In this context, it is clear that as the way we work has radically changed and placed new pressures on workers new measures are needed to meet this latest challenge to ensure that the UK continues to lead the way in workers’ rights.
However, the UK is lagging behind its European neighbours in tackling this latest issue and as we head into an election year it remains to be seen what the political parties will pledge to tackle the issue.
If so many of us are working from home, when and how do we switch off and how do workers protect themselves against bosses whose demands mean that they cannot without fear of discipline or dismissal?
The first European country to legislate on the right to disconnect was France in 2017, long before the pandemic. In 2018 Spain and Italy followed with a suite of measures and the Republic of Ireland introduced a new code of practice in April 2021 which requires employers to have a policy in place which confirms that employees have the right not work outside normal working hours.
In the UK existing health and safety and working time laws may assist in arguing that an employer has breached its existing duties to an employee to provide a safe place of work and not exceed specified working hours. A worker cannot exceed an average of 48 hours in any 17-week reference period. However, many employees opt out of this at the behest of their employers. A bullying and oppressive approach taken by an employer might also entitle the employee to argue that they have been constructively dismissed, the employer having breached the implied term of mutual trust and confidence or express provisions of these existing measures. Should the treatment be linked to a protected characteristic the worker may rely on existing discrimination measures. However, these are responsive rather than proactive measures.
The Labour party has said that it wants to see flexible working as far as is reasonable and practical but that workers should be given the “right to switch off” when they have left for the day to ensure homes don’t become “24/7 offices.” The Trade Union Prospect, general secretary Mike Clancy said his union supported flexible working but added that “‘flexible’ has to actually mean ‘flexible’, not simply moving work from the office to home with the same long hours, ‘always on’ culture…The challenge…is to make sure we build on the flexibility workers want and reset the boundaries between home and work life.”
On 21 January 2021, the European Parliament approved a resolution on the right to disconnect with some recommendations to the European Commission on the text of a Directive. The right is defined as “the right for workers to switch off their digital tools including means of communication for work purposes outside their working time without facing consequences for not replying to e-mails, phone calls or text messages”.
A key part of the Directive is that failure by employers to allow employees to switch off will be “protective, proportionate and dissuasive penalties.” Taking a stricter approach than many countries who have so far adopted a more policy/consensus-based approach.
In October 2023 the European Institute published Guiding Principles on Protecting Worker’s Rights to Disconnect. However, the EU has yet to legislate on this issue.
Whilst the UK will not now be bound by the Directive, given the high prevalence of work-related stress, some of which may be caused by the increasing pressure to be ever “on” and lack of monitoring of home-based staff, such measures must be surely be advisable to ensure that the UK remains a healthy and desirable place to work. 17.1 million working days were lost due to work-related stress, depression or anxiety in 2022/2023 according to the Health & Safety Executive. Looked at visually the trajectory of work-related stress is virtually vertical.
The link between the “ever on” culture and the health and well-being of workers, which has been exacerbated by the pandemic and its aftermath, is clear as is the need for a globally unified response, as workers increasingly work in an online environment.
If you would like to develop a right to disconnect policy to help your business to ensure the health and wellbeing of your staff we would love to help.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.