A Right to Switch Off in the UK: Two Options for Implementation

1. Introduction

If employees are unable to ‘switch off’ from work, the consequences can be serious. Employees who are constantly accessible to their employer via digital devices are more likely to experience ‘suboptimal’ health outcomes for both their physical and mental health. As Benoit Hamon of the French National Assembly put it when France was poised to introduce its own right to disconnect during 2017:

“Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash—like a dog. The texts, the messages, the emails—they colonise the life of the individual to the point where he or she eventually breaks down”.

This quote also highlights the lack of control experienced by working people if they are not able to, or even permitted to, switch off by their employer. The Coronavirus pandemic exposed how blurred the boundaries between home and work life and spaces have become. We find ourselves in an era of hyperconnectivity, where there are few limits to where and when a person can perform work.  Flexibility has benefits for employees seeking to combine work and personal projects or commitments, particularly caring responsibilities. Without some safeguards, however, “availability creep” and the extension of the managerial prerogative into private time is likely to give rise to significant detrimental impacts upon the ability of working people to enjoy their non-work time fully and exercise control over the balance between the various facets of their life.

Constant connectivity also presents an avenue by which employers can request (or even demand) that workers provide substantial amounts of unpaid work. During 2023, TUC analysis reported that UK employees work, on average, 7.2 hours unpaid overtime each week. The net result was that UK employees were cumulatively underpaid £26 billion over the course of that same year. There is a feeling—now shared by many—that we must check and respond to work-related emails or calls outside normal working hours (e.g., in the evening or over the weekend), which has contributed to these alarming rates of unpaid overtime performed by UK workers.

Now is time for UK labour law to respond to this pressing issue. A “right to switch off” was included in the Labour Party’s ‘Plan to Make Work Pay’ and the right remains a priority for the Government. In line with our blog on Australia’s recent experience of introducing a right to disconnect, recent UK media coverage shows that the Government is conscious of preventing people’s homes becoming “24/7 offices” and ensuring that workers are afforded adequate time to rest. These arguments are complemented by the observation that a right to switch off is needed to ensure that working people are able to be productive and stay motivated in a sustainable way. It is therefore the ideal moment to consider how the UK might adopt its own right to disconnect (or “switch off”) that meets these concerns in its particular context.

Here, we investigate two different ways in which the right could be situated: either as part of the general employment law scheme or as an aspect of working time regulation. Both options share a number of advantages, but we argue that the strategy of placing the right to switch off within the working time regime should be preferred. This option offers two distinct advantages when compared with the first. First, there is a coherence between the aims sought by the working time regime and the first two out of the three rationales highlighted throughout our related blog and above: worker health, safety, and wellbeing; exercising control over one’s working time and how one combines work with other commitments and pursuits, and the need for fair remuneration for work done. Second, the default personal scope of the working time regulation offers protection to ‘workers’, rather than ‘employees’ only. This scope offers an improved alignment with the aims of a right to disconnect because, as discussed below, both the right to health and safety at work and the right to respect for one’s private and family rights are human rights and should be as broadly available as reasonably possible. Overall, our view is that the working time framing of the right to switch off offers improved alignment between the aims sought, the structure of the right itself and the default personal scope and therefore has much to recommend it.

2. Two Perspectives on the Right to Switch Off

There are two ways in which the right to switch off could be framed in the UK. First, an approach comparable to that adopted by the Australian lawmakers could be selected. Under this approach, the right is inserted into an overarching legislative framework that regulates employment relationships generally. In Australia’s Fair Work Act 2009 (Cth), for example, the right to disconnect appears alongside a range of other employment rights, including, for example, the right to request a flexible working arrangement in certain circumstances and a right to long service leave following a minimum period of service.

This kind of approach has been recommended by the Trades Union Congress’ Artificial Intelligence Bill, which would insert a statutory right to disconnect into the Employment Rights Act 1996 (ERA). The right recommended would prevent an employer from requiring an employee to monitor or respond to work-related communications or carry out work outside of normal working hours. There are two exceptions: where a collective agreement or workforce agreement sets out a different arrangement or where there is a ‘genuine economic or functional emergency’ that threatens the fair running of the employer.

An alternative approach would be to introduce the right to disconnect as an amendment to the working time regime. The connection between online availability outside of working hours and working time regulation has been recognised by how the discussion is framed in Germany. In the UK’s Working Time Regulations 1998 (WTR) we find the right to a maximum 48 hour working week, the right to paid annual leave and the right to daily rest. Could we think of the right to disconnect as a working time right? What consequences would this shift in thinking lead to? Before investigating these specific questions further, it is worth noting the advantages that the approaches share.

In common with countries such as France and Australia, the result of either approach would be the introduction of a statutory right, rather than a code of practice or other softer regulatory strategy. In Ireland, for example, a statutory code of practice was issued by the Workplace Relations Commission that requires employers to create their own ‘right to disconnect policy’. The policy should emphasise an expectation that staff disconnect whilst allowing for when business and operational needs require contact. Authors of a report on the Irish experience of the right to disconnect observe that the code of practice seems to have occupied the territory, with the Government now disinclined to introduce any further legislation that could offer a stronger right to working people.

In addition, introducing the right to switch off as part of a general statute like the ERA or within the working time regime would mean the right operates within the existing structures of employment law. There would be no need to “reinvent the wheel” when it comes to, for example, jurisdiction (the Employment Tribunals) or evidential matters. As employment law is a broadly coherent structure, either approach could easily connect to means by which the right could be rendered more context-specific through workplace negotiation and agreement. Here, however, we do think that the working time framing could bring advantages as both employers and workers rely on established patterns of negotiation around working time, to which the right to switch off could sensibly be added.

In terms of remedies, the model of providing a declaration regarding past breaches and awarding such damages are considered ‘just and equitable’ leaves a great deal to be desired. We see this model in both the WTR in reg 30, and the ERA in, for example, section 57B on the right to time off for dependents. There are several difficulties with this approach, including the long delays before receiving a decision and the limited sums available if successful disincentivising potential claimants. In the context of the right to disconnect, ongoing or repetitive breach is also likely to be a problem where the employer has not adjusted their practices adequately to take account of the right. The TUC Bill recommends damages of ‘a sum not exceeding an amount equivalent to the worker’s pro rata daily wages for each day on which a breach has occurred.’ This approach would offer a more appropriate remedy for repeated breaches. The Australian ‘stop order’ would be a useful tool in responding to ongoing infringements. Options such as these should be considered in response to a breach of the right to switch off in the context of a wider review of the enforcement mechanisms and Employment Tribunal system promised by the incoming Government. A right to switch off will mean little if it cannot be enforced effectively through litigation as the ultimate “backstop” for a wronged party.

3. The Working Time Regime: The Role of Health and Safety and Respect for Private Life

Whilst the general or the more specific framing of the right to disconnect share these advantages, we argue that there is a strong overlap in terms of rationale between the right to switch off and the working time regime. Just as the problem was introduced above and in our previous blog, the right to disconnect can be seen as responding to three concerns: the health and safety implications of an “always on” working culture (particularly its detrimental mental health impacts); the need for working people to have a sense of control and autonomy over how they balance work and non-work commitments as an aspect of their right to respect for private and family life, and the reality that time performed outside of standard working hours is unlikely to be remunerated fairly. The working time regime plays a major role in tackling the former two concerns in the wider scheme of UK labour law so we argue that there would be a sense of coherence achieved by amending the WTR to include a right to switch off.

By reason of its role in implementing the EU Working Time Directive, the health and safety purpose of the working time regime has always been at the forefront of discussions of its functions. The Council of the European Union relied upon the health and safety competence successfully to introduce the Directive in the face of objections from the UK government of the time. The importance of adequate rest between periods of work and within working days, as well as preventing excessive working hours in a week and guaranteeing paid annual leave, for maintaining a healthy workforce is clear. Being available to meet the demands of an employer outside of working time damages the quality of rest enjoyed by a worker or interrupts it entirely if work is actually performed. There is a commonality between the issues being tackled by a right to switch off and the wider working time regime when framed as a measure to encourage working conditions conducive to, in the words of the Court of Justice of the EU, ‘complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity.’

The commonality runs yet deeper. The range of working time rights play an important role in enabling working people to exercise control over how they combine work responsibilities and their personal life, projects and commitments. Alan Bogg, for example, argued that the right to paid annual leave should be conceptualised and elaborated upon according to a ‘humanisation principle’. This principle maintains that the exercise of individual autonomy over the organisation of work should only be curtailed where the limitation is a proportionate means of pursuing the business’ legitimate aim. The language used in Bogg’s work reflects another even broader ambition pursued by placing limits on the managerial prerogative over working time. Enabling workers to exercise autonomy and control over their work-life balance, although it may be limited by the employer’s needs, is one way in which the law protects the right to respect for private and family life, set out in Article 8 of the European Convention on Human Rights and incorporated into UK law by the Human Rights Act 1998. In the era where smartphones are with us wherever we go, a right to switch off appears to us to be an essential piece of this broader puzzle of guarantees offered by the WTR.

The proposed form of a right to disconnect also coheres well with the wider working time regime. Central should be an individual right to exercise choice regarding how and when to work, subject to the genuine needs of the business. We can see similarities here with the operation of the right to paid annual leave. Importantly, individual choice should be recognised within the right itself, rather than through an opt-out of the kind that is possible in relation to the 48 hour working week. There should also be scope to tailor the general regime to the context or sector of the work. In the WTR, this possibility is catered for by reg 23 on collective and workforce agreements. Trade unions have already seen some successes in the UK, notably in Scotland, in securing a right to disconnect via collective agreement, which indicates an appetite to negotiate on this issue. Although we could question whether the standard remedial package of declaration plus compensation will be as effective as the Australian ‘stop order’ in the context of the right to disconnect, the overall form of a right to switch off would be consistent with the working time regime.

The remaining concern, that workers are performing unremunerated work for their employer in the form of responsiveness out of hours, is not automatically addressed by a working time framing of the issue. The working time scheme does provide a way of calculating ‘normal remuneration’ as a result of the right to paid annual leave, but we are not convinced that there will be appetite to introduce a right that would guarantee additional pay for this form of work undertaken. Perhaps the most that could be aimed for here is that employers will be prompted to consider, in conversation with workplace representatives, how workers should be remunerated for work undertaken outside of normal working hours in response to contact from the business or its clients.

4. A ‘Worker’s’ Right to Balance their Work and Private Life

Given the nature of the right under discussion, one might think that it would be sufficient to extend the right to ‘employees’ and indeed this is currently the approach of the Australian right to disconnect. It could be assumed that this problem is faced primarily by those who are in a paradigm relationship of employment, who are subject to control, integrated thoroughly into a business, do not take economic risks, and offer service on a long term basis. Of course these paradigm employees do need the form of protection discussed here, as their dependence upon their job and subordination to the organisation’s demands make them vulnerable to the kinds of risks and difficulties outlined above. But they are not the only group within the workforce who should receive the safeguards discussed here.

We argue that an additional advantage of adopting the working time framing of the right to switch off is that the right would also adopt the default personal scope of the WTR: the ‘worker’. This default position in the WTR contrasts with the ERA and the Trade Union and Labour Relations (Consolidation) Act 1992. These statutes extend guarantees to workers and/or employees, depending on the right in question.

The ‘worker’ category was initially tested in the context of jobs where the right to disconnect may not be as useful, such as car valet, builder, and plumber. However, we now see a huge range of occupations appearing within the ‘worker’ category. For example, in Bates van Winkelhof v Clyde and Co, a partner of a law firm was recognised as a ‘worker’ for the purposes of protections associated with whistleblowing. Dr Westwood, who provided hair restoration work for a clinic in addition to working elsewhere as a doctor, was held to be a ‘worker’ in the context of claims of unlawful deductions and holiday pay. The ‘worker’ category thus contains a wide range of working individuals who, we suggest, should be protected by the right to disconnect.

There are two complementary ways of framing the justification for this extended scope. First, we would observe the obligation of personal service and integration into another person’s business that unites ‘workers’ generates sufficient control and dependence upon that other business that the need for the right to switch off is present. Second, if we return to the rationales for the right itself offered here, they are essentially human rights arguments in various forms. The right of workers to enjoy healthy and safe working conditions is recognised internationally in the European Social Charter, the International Covenant of Economy, Social and Cultural Rights and the Charter of Fundamental Rights of the EU. There is a close connection between this right and the need to create limits on working time, as described above. These concerns would also fall within the wider umbrella of Article 8 ECHR, along with measures that ensure working people can maintain a balance between home and work (such as family leave rights as in Markin v Russia) and mechanisms that ensure that an employer’s demands do not trespass disproportionately into one’s private and family life.

The human rights underpinning of the right to disconnect suggests strongly that its scope should be as broadly defined as possible. Adopting the ‘worker’ category would align with this imperative, at least in the medium term whilst the new Government assesses how to move towards a single employment status.

5. Conclusions: Working Towards a Right to Switch Off

Whilst some practitioners and academics have not struck an optimistic tone with regard to the right to switch off, our view is that it would be a positive step for working people by reflecting their expectations regarding the ability to maintain one’s own work/life balance and prompting a shift away from the ‘always on’ workplace culture. We hope that the Government’s commitment to the right to switch off sees a Bill introduced that brings the UK into line with developments elsewhere and reflects lessons learned from the Australian experience of legislating on this matter. We have argued that serious consideration should be given to the possibility that this right could be framed as a working time right, given the alignment in justification, design and personal scope between the working time regime and the right to switch off or disconnect. However the right is ultimately formulated, it will certainly amount to a welcome addition to the suite of employment rights already in place in the UK.

This blog was first published on the UK Labour Law blog. We thank them for their kind permission to reproduce it here.