Government promises "right to switch off"

By Kelly Kennedy, Writer at Barbour EHS

The Government's plans to introduce a "right to switch off", establishing a barrier between workers' professional and homes lives, could see staff secure bumper payouts at employment tribunals.

Labour has promised to give employees the right to ignore work-related calls and emails out of hours, so homes do not become "24/7 offices". The plan is to make sure "we're not inadvertently blurring the lines between work and home life".

The Prime Minister's Deputy Spokesperson said: "This is about ensuring people have some time to rest".

"Good employers understand that for workers to stay motivated and productive they do need to be able to switch off, and a culture presenteeism can be damaging to productivity".

The policy, which will see employees and employers agree to an expected set of hours during which they can be contacted, has been based partly on examples in Belgium and Ireland. In:

• Ireland: a Code of Practice was developed in consultation with trade unions in 2021 which requires employers to engage with staff on a "right to disconnect" company policy, setting out the circumstances when people can be contacted out of normal working hours, which although not legally binding, can be used in evidence against employers in claims for breach of employment rights;
• Belgium: the right to disconnect is backed by legislation and only applies to companies with more than 20 employees.

The idea has grown more popular since the pandemic, which made flexible working practices the norm, but also made the line between home life and working hours more unclear.

However countries such as France and Spain have had rules in place for years, with France giving employees the legal right to avoid emails outside working hours back in 2017.

The plans are expected to also cover workers' annual leave, meaning bosses would not be allowed to ask employees to carry out work-related tasks while on holiday.

According to The Times, employers who repeatedly breach an agreement could have thousands of pounds added to their compensation bill if they are taken to tribunal.

The paper reported that breaching an out-of-hours code of practice is unlikely to warrant litigation alone, but employees could use it as an aggravating factor in a wider claim, boosting their chances of winning and increasing their potential compensation.

Currently, if companies are shown to have ignored codes of practice, the amount of compensation awarded in tribunals can increase by 25%, with breaches seen as aggravating factors. Experts told The Times that breaching agreements on out-of-hours working could result in payments reaching into the thousands.

Ben Smith, Senior Associate at the employment law firm GQ Littler, said: "I expect [the changes] will include a new code of practice from Acas which will put the onus on employers to implement policies and practices. I expect, though, that this will be fairly broad guidance on principles and best practice, and would give employers the scope and flexibility to find the right balance for their business — but there will be tricky issues to think through".

Government sources said the policy would have to be specific to each workplace when implemented, with ministers aware of the disproportionate potential impact on smaller companies.

The right to switch off is part of a collection of reforms to workers' right being introduced by Labour in their "Plan to Make Work Pay ". Other measures include:

• a ban on exploitative zero-hour contracts;
• ending fire and rehire;
• boosting the minimum wage; and
• the right to sick pay, parental leave, and protection against unfair dismissal from day one after probation.

The Department for Business and Trade said the Government is "proud to be delivering the biggest upgrade to workers' rights in a generation".

"Our plan to ‘make work pay’ will consider a range of approaches on the right to ‘switch off’ that work for businesses and employees alike. We will set out further details in due course".

The statutory workers' rights laid out in the King's Speech are expected to come into place in spring, with the new right to switch off likely to come around the same time.

Paul Nowak, Trade Union Congress General Secretary, said: "No one should be pushed to the brink because of their job".

"Ever-increasing hours, pace and expectations at work are causing problems up and down the country. This is a recipe for burnt-out Britain".

"So we welcome these measures to tackle work intensity. Introducing a right to switch off will let workers properly disconnect outside of working hours".

For more information on this subject, see:

• Labour's Plan to Make Work Pay: Delivering a New Deal for Working People.