What is the ‘right to disconnect’ and why do we need it?

UK employees have long been subject to a notorious ‘long-hours culture’. In 2019, UK workers were already working more hours a week than in any other country in the EU. TUC analysis showed UK employees put in nearly two hours more of work than the average for the bloc, equivalent to two and a half weeks a year. It is also noteworthy that this did not translate into increased productivity: the Danish worked on average four hours less, for example, and their productivity was 23% higher.

Since then, Covid has only seen working time grow in people’s lives. According to data from NordVPN Teams, UK workers have increased their working week by almost 25% and are now logging off at 8pm. Surveys by Wildgoose found that 58% of employees report being expected to do more work over the last year. The research also reveals that employees have been taking shorter lunch breaks, working through sickness and greater and greater number report being ‘always on’ as the split between leisure and work time has become increasingly blurred.

Though this is not a new debate, these developments have fuelled discussions around a ‘right to disconnect’. Technological advances, and demands from unions and workers, have spurred governments to consider the right to differing extents. France was the first to implement a legal right for employees to digitally disconnect from work in 2016. Workers in countries such as Germany and Spain have won legislation that safeguards negotiation or offers boundaries over the encroachment of work into home life. Trade union Prospect has urged ministers to include such a right in the government’s employment bill. Its proposals could ban bosses from “routinely emailing or calling” outside set working hours, with emails potentially automatically deleted to deter off-duty staff from continually checking their inbox.

But do we need it? An employee’s working time is primarily governed by their contract, which normally stipulates the hours and days on which they are expected to do work. But for salaried office jobs, most contracts now include a provision allowing the employer to require their staff to work more than their normal hours at time for no additional benefits, either in pay or time off.

The EU working time directive, implemented in UK law by the 1998 working time regulations, limits the average weekly working hours to 48, calculated over a 17-week period. It also includes a daily rest period of 11 consecutive hours in each 24-hour period, a weekly rest period of 24 consecutive hours each week or a period of 48 consecutive hours every two weeks. Employees who work six hours are statutorily entitled to a 20-minute break, with some caveats for exceptional and unforeseen circumstances.

Employers who break these regulations can face legal ramifications. A case in Ireland saw an employee awarded €7,500 after showing that dealing with out-of-hours emails meant he worked in excess of 48 hours a week. Some therefore say workers already effectively have a right to disconnect. Crucially, however, enforcement is weak.

The 1998 working time regulations created potentially important new rights to breaks, but they are almost wholly reliant on the willingness and ability of individual workers to bring claims before tribunals, significantly compromising the effectiveness of the rules. There is also no specific right under the EU-derived legislation for those who work digitally to switch off outside working hours. And an opt-out exists for the 48-hour weekly limit that, in line with our long-hours culture, employers frequently expect their staff to agree to.

The increase in remote working has just fundamentally blurred the lines on ‘normal’ working time considerations. As more work is done remotely, online and from home, enabled by advances in tech, it becomes increasingly difficult to monitor the time you actually spend working. How do we count the time spent checking for, reading or quickly replying to emails on our smart phones? On average, we check our phones 85 times a day. How many of those times are for work?

The wording and enforcement of any right to disconnect would be key. Would there be an opt-out, and how would we stop bosses effectively making exercising it a condition for getting the job? The working time regulations did not put an end to the long-hours culture in the UK, after all. But the impact of a right to disconnect could be far-reaching, helping to transform the unhealthy relationship that has grown up between our work and the rest our our lives. Employment rights have not changed to reflect the technological advances and working practices of workers over the past two decades. It is time we fixed that.

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