How will the Government’s Proposed “Right to Switch Off” Work in Practice?
Author: Sam Evans
Key Contact: Chris Aldridge
Labour has previously promised to implement a right to ‘switch off’ for employees outside of work. This initially meant a new right for workers to disconnect from work outside of working hours and the right not to be contacted by their employer. The latest proposals appear to be far less ambitious and point towards employers having to consult workers about workplace policies and practices, based on laws in force in Ireland and Belgium.
In Ireland, commentators have remarked that the regulations have been largely ineffective and have primarily resulted in changes to workplace policies and workers’ email signatures.
At the moment it is understood that this right to ‘switch off’ will involve a binding code of practice agreed between employers, employees and their representatives, setting out expectations in terms of working hours and when staff should expect to be contacted.
It is expected that the policy will include an opt out, allowing employers to contact staff in emergency situations. Such situations would likely be defined in the relevant code of practice.
Have there been any recent developments regarding this policy?
However, on 18 August 2024, The Times reported that employers who repeatedly breached any code of practice agreed between employer and employees about out of hours working could be liable for significant sums of compensation if an employee successfully brought a case before an employment tribunal. Whilst the details remain outstanding, it will likely be similar to the current system of uplifts for unreasonable breaches of the Acas Code of Practice on Disciplinary and Grievance Procedures. This mechanism allows a tribunal to award an uplift of up to 25% on any compensation, but any breaches of a code of practice on out of hours working will not lead to a standalone claim.
For the moment, there is no precise detail about the potential uplift that might apply but any uplift of compensation will go further than some of the models already adopted abroad.
A government source contacted for the above article mentioned that any proposals would take into account the potential burden that such a measure could impose for small businesses. This might mean that the government may look to the French implementation of the right to switch-off, where there is no sanction for employers with less than 50 employees who breach the right to switch off. An article in the i suggests that the government may take a different approach and tailor the rules based on the industry or specific roles where demands may be different rather than adopting a blanket approach.
How can employers prepare for a right to switch off?
Whilst this policy is still very much in development, we would recommend that employers begin to consider what a ‘right to switch off’ policy may look like in practice and consider if their policies and practices promote a healthy work/life balance. We note that some organisations have already began to include email signatures which address the topic of replying outside of working hours. For example, some email signatures may say “You may receive emails from me outside of normal working hours. Please do not feel any pressure to respond outside of your normal working hours”.
In addition, we would recommend that employers review their existing policies relating to hybrid or flexible working as well as any existing disciplinary policies.
Even if this remains a controversial idea with numerous detractors, this could be an opportunity to foster positive workplace relations by helping employees to feel consulted and that they ultimately have a real say in their workplace. For instance, we would recommend that, where possible, employers seek to clarify if staff are currently satisfied with their work/life balance and if anything else could be done to promote a healthy balance.
If you would like any further information about the “right to switch off”, or the upcoming changes set to appear in Labour’s Employment Rights Bill, please contact the Employment team at Acuity Law.
