Already an IBA member? Sign in for a better website experience

Employment: ‘right to disconnect’ laws proliferate during pandemic

Lucy TrevelyanWednesday 8 December 2021

A growing number of countries have established new remote working rules, following concerns that the pandemic-driven era of working from home (WFH) has increasingly blurred the boundaries between home and the ‘office’.

The Covid-19 pandemic has led to a WFH revolution for millions of people – albeit an enforced one. And it seems remote working is here to stay for many, as employees demand greater flexibility and employers realise that staff can be as productive outside the office and simultaneously save them a significant amount of money on office space. 

Despite the flexibility WFH brings, however, there are concerns that it has led to a ‘never off’ culture, with workers expected to always be available, regardless of their contractual working hours. This inevitably has negative implications for employees’ mental health.

A June 2020 study by communications agency FleishmanHillard found that although 85 per cent of respondents found advantages in remote work that make for a better work/life balance, 61 per cent were worried that as remote work continues, they will be expected to be even more reachable outside of normal business hours.

To counter this concern, in mid-November, Portugal brought in a new ‘right to rest’ law for companies with more than ten employees. The legislation could see companies facing fines if they contact or monitor employees outside their contracted hours.

Meanwhile, in April, Ireland laid out a Code of Practice that includes the ‘right to disconnect’ and to request flexible working.

The two countries join France, Italy and Spain in introducing a ‘right to disconnect’ rule in the last five years in a bid to improve the work/life balance of their populations.

Ueli Sommer, Co-Chair of the IBA Diversity and Equality Law Committee and a partner at Walder Wyss in Zurich, believes the rise of psychological issues and ‘burn-outs’ over the last decade, which result from the inability to take breaks from work, are the driving forces behind such laws.

‘The benefits [of remote working] are obvious,’ he says, ‘but the difficulty is in controlling this and accommodating flexibility for employees who want to operate flexibly, in particular when they work from home and across time zones. The reality is that personal and business lives have become more and more a mix.’

‘This fact cannot be reversed by such laws,’ he says, but adds that such legislation ‘helps employees to say no to their bosses and might change the work culture slightly’.

Fines for employers as laid out in Portugal’s ‘right to rest’ laws may work – but [who] would these be claimed by and paid to – the employee?

Leeanne Armstrong
Legal Director, TLT

The benefits of such laws are clearly to ensure a better work/life balance and to ensure that the employee is able to get a sufficient amount of rest each day, says Caroline André-Hesse, Communications Officer of the IBA Employment and Industrial Relations Law Committee and a partner at Ayache Avocats in Paris. Enforcing such laws, however, can be problematic.

‘It is difficult for the employer to ensure employees respect the right to disconnect and to develop tools ensuring its effectiveness’, she says. ‘It also remains difficult to ensure full enforceability of the law in this respect as the employee’s decision to effectively disconnect belongs to his/her personal life.’

The enforcement mechanism would be the main concern or challenge around any new legal requirement to not contact employees outside of core hours, says Leeanne Armstrong, a legal director at UK law firm TLT, as without this any new rules would have no teeth.

‘Claims have already been made under the French right to disconnect’, she says. ‘However, there are no rules about how workers should be protected and no specific procedures. A more standardised approach would ensure more consistent protection across the workforce for countries wishing to replicate a similar arrangement.’

Germany meanwhile has adopted a company-led approach, with the government having worked with unions to develop a ‘minimum intervention leisure time policy’ and large employers such as Volkswagen and Daimler introducing policies to protect employees outside of their contractual hours.

Armstrong says that the manner in which employees can seek redress if the rules are breached needs to be considered. ‘Fines for employers as laid out in Portugal’s “right to rest” laws may work – but [who] would these be claimed by and paid to – the employee?’ she says. ‘Or would the model follow the UK’s National Minimum Wage model, with an enforcement body like HMRC [HM Revenues & Customs] investigating whether employers were compliant, with fines payable to the government?’

David Sheppard, a senior associate at Capital Law in the UK, say it’s arguable that the ‘right to disconnect’ legislation has worked well in a handful of European nations because it more accurately reflects the work/life balance and working culture in these countries. In jurisdictions with traditional long hours cultures, such as the UK, such laws might not be so successful.

‘The Working Time Regulations 1998 have not ended long hours cultures in the UK, which have remained the norm in many workplaces and sectors’, says Sheppard. ‘Unless any new legislation has limited exceptions and easier ways of enforcement it is difficult to see how a new statutory right to disconnect alone would result in a significant cultural change for all jobs across all industries, particularly if it contains broad and vague exemptions permitting working outside normal hours.’

He adds that if enforcement is only through an employment tribunal claim, many employees would likely be unwilling to take the drastic step of commencing litigation against their employer in response to receiving out of hours emails alone, particularly if compensation is modest.

If drafted properly, a ‘right to disconnect’ law should achieve its required aim, says Armstrong. ‘The wording would need to ensure that it covers atypical working patterns as well as conventional hours.’

Ultimately, says Chris Pavlou, a partner at Excello Law in the UK, it’s fundamental to consider how the legal right to disconnect could detrimentally impact businesses and workers. ‘If they are bound by legislation, this would give [companies] and employees less flexibility, which is in contrast to what we have seen throughout the pandemic’, he says.

Image: Golden Sikorka/ Shutterstock.com

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights