Why It Might Be a Good time to Implement a “Right to Disconnect” Policy

In this article we explore the growing trend toward establishing legislation to formally permit staff from disconnecting from work outside of their contracted hours.

Before we look at the legal and HR considerations we‘ve a brief survey for you. Don’t worry you can keep the findings entirely to yourself but please be as honest as you can in your reflections on these scenarios.

Do any of the following statements apply to you in their entirety or part?

  • You have difficulty switching off from work related matters when you should be relaxing?
  • Emailing colleagues in the evening or very early in the morning has become commonplace due to the pressure of work/ fear of a lack of action if you don’t.
  • Keeping on top of priorities is almost impossible which is why its easier to immediately delegate when an issue arises.
  • You fear that if action isn’t taken immediately either the business will suffer or you personally might be under threat of losing your job.
  • You can’t ignore the ping of a message notification and immediately feel compelled to read and respond.
  • Your sleep pattern is poor and you rely on coffee to fuel your day and alcohol to relax.
  • First thing in the morning you:
    1. Reach for the alarm to silence it and put off getting up
    2. Stretch out for your phone to check for messages
    3. As (b) but to do your daily Wordle
    4. Manage a combination of all the above

These are just a series of random statements yet it would be surprising if you didn’t connect with at least one of these situations.

First and foremost, RELAX, it’s not your fault, the experiences and responses above are incredibly common. The vast majority of the population has lived through the most stressful period in living memory. Add to the mix that we are more connected and plugged in to global events and technology than ever before and you have a potentially toxic cocktail that can only lead to these behaviours.

Managing the negative aspects of diet, sleep and personal relationships should be something we prioritise but all too often we elevate our jobs to a position where they dictate our ability to change those poor habits and it becomes in itself an unhealthy cycle.

One thing we can do as business owners and managers is understand that this mental struggle is in itself at epidemic proportions. As an employer it’s important to reflect on current working environments and assess if your culture is supportive of employees needs or making matters worse.

A simple and effective step on the path to addressing employee fatigue, stress, low mood and anxiety is to ensure working hours are not flexing to unhealthy levels.

Working from home can have many advantages but *research has identified an innate guilt manifesting in employees putting in extra hours to prove that the experiment is working and you can be productive when only a scone’s throw from the fridge.

  • Nearly half (46%) of working UK employees felt more pressure to be ‘present’ during lockdown
  • More than a third continued to work while feeling unwell – 16%, due to redundancy fears
  • 25% now start work earlier and 24% are juggling their hours around childcare and home-schooling

*Research by Canada Life into presenteeism during lockdowns

But what can be done to address this serious issue of staff morale and wellbeing?

Long before we had any thought of a pandemic or implications of lockdown life, other nations were looking to address the impact of failing to manage a work-life balance in the 21st century.

2001, the Labour Chamber of the French Supreme Court highlighted the issue with the following finding;

“The employee is under no obligation either to accept working at home or to bring his/her files and working tools.” This might seem counter to a search for more flexible working however in 2004 the Supreme Court clarified this decision further by ruling that “the fact that an employee is not available to be contacted on a mobile phone outside working hours cannot be considered misconduct.”

Further French refinements to the legislation resulted in an adoption of El Khomri Law (named after the then Minister of Labour), in August 2016 which took effect for businesses employing 50 or more staff, early the following year.

Whilst light on a specific definition of what the “right to disconnect” might entail for French employers, it did require organisations to engage in discussions with employees.

Suggested topics for discussion included the obvious messaging of staff out of hours. A provision was also made in the event that a negotiated agreement was not possible. In such circumstances the employer could simply set their own guidelines.

Subsequent to the French pioneering stance Italy, Spain, Slovakia and the Philippines have all implemented their own variations of the disconnect legislation.

The topic is getting ever closer to home with Ireland setting guidelines, albeit not enforceable law in March 2021. Here follows the key points within the Irish Code of Practice:-

  1. The right of an employee to not have to routinely perform work outside their normal working hours.
  2. The right not to be penalised for refusing to attend to work matters outside of normal working hours.
  3. The duty to respect another person’s right to disconnect.

At the end of 2021, during a budget announcement, the Scottish Government’s Finance Minister, Kate Forbes, announced the intent to have “meaningful discussions” on the subject of permitting public sector workers the right to disconnect.

The momentum seems to be moving inexorably toward the UK adopting a form of the legislation not least in an acceptance of the challenges faced by so many balancing the pressures of home working, increased levels of “burn out” and over use of technology disturbing the overall physical and mental health of workers.

It could be that we are sometime from seeing legislation make its way onto the statute book however that should not provide employers with a free pass to ignore the public mood.

Add to the mix the fact recruitment and retention of staff has become a significant issue for a large number of employers. The term “the Great Resignation” arrived from the US, an event sparked by reflective workers deciding on new careers during lockdowns. This global phenomenon finds organisations facing a sudden uptick in vacancies and shortage of suitable candidates to backfill the positions.

The smart money would therefore be on employers focusing on how best to retain their talent. Many businesses are now working hard to improve the workplace environment, increase trust levels and provide protection from unreasonable work requests.

Suggested Considerations for Implementing a Right to Disconnect Policy

  • Review existing policies and assess effectiveness against the current working arrangements.
  • Regularly review staff exit interviews. A single comment could help prevent a damaging trend.
  • Consult with staff on hours and flexibilities, notably care responsibilities and the impact on the role. Implementing a strict policy of no communication outside contracted hours could negatively impact those who work flexibly by removing them from email circulars.
  • Research businesses that have effectively implemented a right to disconnect policy and learn from their experience.
  • Ensure that the business has 100% buy in to the policy, an errant manager, supervisor or boss could undermine the best efforts to improve the company culture.
  • Highlight the implications for those who breach or ignore your right to disconnect policy.
  • Regularly (at least quarterly) measure the impact of the implementation and assess those working in a variety of roles and locations across the organisation. How happy are they? How has it affected staff turnover?

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