Since the COVID-19 pandemic, remote working has become a key feature of most work environments, with more and more people opting to spend a portion of their working week outside the office (and more employers allowing them to do so). While this has been greatly advantageous for many due to the increased flexibility it provides, issues have arisen such as the growth of an "always-on" culture. With the line between home and work increasingly blurred, many employees feel they are unable to disconnect, frequently working overtime, checking emails after working hours and generally affecting their work-life balance.

This has spurred a new round of discussion over the regulation of remote working with calls for new rules to empower employees to switch off from work when their office is also their home. This has been talked about as the "right to disconnect" and focuses on establishing a right for employees not to be contacted, or not to have to respond to contact received, outside their normal working hours.

Most recently, the European Commission has launched a consultation with a view to adopting a proposal for a law to address the issues of fair telework (remote working) and the right to disconnect.

Current position

Currently, there are no EU laws granting a right to disconnect, although some countries, such as France, have already legislated to establish this right. Various elements of teleworking are instead regulated by several EU laws including the Working Time Directive, the Directive on transparent and predictable working conditions and the Directive on work-life balance. While these Directives help regulate weekly working hours, predictability of work, and balancing work and family life (among other things), they do not address the issue of employees not switching off from work as directly as a specific right to disconnect would. This consultation aims to address these issues head-on.

If such a right is introduced, it may mirror those already implemented within Europe and some other parts of the world. While having gained traction as a topic since the pandemic, in many countries this is a right which existed even before COVID-19 with France introducing it in 2017 and Spain, Portugal, Belgium and Australia having since done so.

These existing rights, and the policies employers have established to reflect them, give us an insight into not only their effectiveness but also how they can work in practice. For instance, legislation on the right to disconnect is often limited to organisations who have numbers of employees above a certain threshold (so excluding smaller employers). In some countries, there is a requirement for the company policy ensuring the right to disconnect to be agreed with employees or their representatives.

However, critics say that protections put in place to support the right to disconnect are not always effective. For example, when a Code of Practice on the Right to Disconnect was introduced in Ireland in 2021, practically the only change reported was a disclaimer added to people's emails saying replies are not required outside usual working hours unless the email has been marked as urgent. Whilst the Code of Practice was not a "law" as such, implementation of a right to disconnect still clearly needs work to achieve its intended purpose.

European Commission consultation

In response to this, the European Parliament called on the European Commission to adopt a proposal for a law to address the issues of fair telework and the right to disconnect. Subsequently, on 30 April 2024, the Commission launched a first-stage consultation with the European social partners on the possible direction of any EU action to deal with these issues. This is due to close on 11 June 2024 and the response will be combined with a study published by the Commission in 2024 exploring the social, economic, and legal context and trends of telework and the right to disconnect during and after the COVID-19 pandemic.

Right to disconnect in the UK

Of course, any EU Directive will not be effective in the UK. The implementation of a similar right or code in the UK has, however, been discussed in recent years with the Scottish government being the first UK nation to show a positive commitment to establishing such a right in late 2021 (as discussed in our previous blog linked here). However, as of yet, we have not seen this come to fruition.

Nevertheless, the Labour Party has, for the second time now, included a right to disconnect in its draft "New Deal for Working People". While the wording of the specific proposal has changed in the most recent version, it appears to mirror the approach of the Irish and Belgian models – allowing workers and employers to engage in discussions to develop a workplace-specific policy around when workers can be contacted to allow for a better work-life balance. This will be something to keep an eye on as a general election approaches over the coming months.

Overall, a right to disconnect is once again appearing on both workers' and employers' radars, and it is likely we will see it crop up more and more as the Commission's consultation progresses and political parties in the UK vie for votes. In the meantime, employers may want to begin reviewing internal policies around work-life balance. While flexibility is highly valued by employees, it is crucial this happens without creating an "always-on" environment, which can be damaging to employees' mental and physical health (and, in turn, create problems for businesses). Encouraging employees to make each other aware of their hours and agreeing practices of communication outside standard work hours can be helpful even without a statutory right to disconnect.