There has been a lot of conversation around an employee's right to disconnect throughout the COVID-19 pandemic. David Sheppard, from our employment team, explores why it's such a complicated issue, and whether imposing a statutory right could impact workplace culture.
Legally, an employee’s working time is primarily governed by their contract of employment, which will usually state an employee’s normal working days and hours. But for salaried office based jobs, most modern contracts give employers a contractual right to require employees to work more than their normal hours to meet the needs of the business for no additional pay or time off.
Employees’ working time is also subject to statutory limits under the Working Time Regulations 1998 for health and safety purposes. Under these regulations, employees cannot have an average working time of more than 48 hours per week calculated over a 17-week reference period. In reality though, most employers with pre-existing long-hours cultures will expect (although they cannot insist) employees to agree to opt out of this limit in their working time at the commencement of their employment.
Some other working time limits under the 1998 Regulations cannot be opted out from – like a daily rest period of 11 consecutive hours in each 24 hour period, and a weekly rest period of 24 consecutive hours each week, or a period of 48 consecutive hours every fortnight. Employees who work 6 consecutive hours are also statutorily entitled to a rest break of not less than 20 minutes. There are exceptions to these limits in exceptional and unforeseen circumstances, but employers are still required to provide employees so-called compensatory rest as soon as the circumstances allow.
Employers who don’t comply with these Regulations certainly expose themselves to costly claims. But even where the employer complies, the amount of working time permitted remains considerable. So, even if their hours do not breach these limits or their contract of employment, employees may feel significant stress from the blurring in working time.
Under common law and under health and safety legislation, employers owe a duty of care towards their employees to ensure a safe working environment, which by extension would include the level of demands and expectations to deal with emails out of hours.
If the additional demands are causing or are likely to cause an employee ill health, then they would owe a duty of care to ensure working expectations are adjusted and managed reasonably to avoid it having these effects and undertake risks assessments concerning stress at work and long-hours exposed in front of screens at home. If an employer breaches this duty of care and an employee suffers a physical or psychological injury, they could bring an injury to work claim and potentially resign and claim constructive unfair dismissal. However, the level of work which can be put on an employee will vary from person to person and will be adjusted on a case by case basis.
The proposals for a statutory right to disconnect would be a potentially significant change in working relationships, as it would set clear parameters as to working time and expectations which do not exist within typical contracts of employment and the 1998 Regulations. It would potentially create working cultures where late or early working activity is frowned upon as opposed to being celebrated, with the obvious benefits that would have for wellbeing.
However, the practical effect of any legislation will very much depend on the wording and extent of exceptions – will there be a provision to opt-out, or exceptions for busy or emergency periods? The 1998 Regulations have not ended long hours cultures, and unless any new legislation has limited exceptions, it is difficult to see how a new statutory right to disconnect alone would result in a significant cultural change.
If you have any questions relating to understanding the Working Time Regulations 1998, duty of care, or any of the issues discussed above, please don’t hesitate to get in touch.