The legal ‘right to disconnect’ debated in Australia

Sometimes known as the right to switch off, the right to disconnect addresses the concept of an employee’s work-life balance by ensuring they are not working outside of their normal working hours

It has garnered much more interest in recent years as the rise in homeworking has caused the lines between “home” and “work” to be blurred, and the temptation to check a work phone and laptop during the evening and at weekends to stay “on top” of things and not be met with a deluge of new emails and information all at once in the morning has, for some, become too much.

Although it may at first seem beneficial to an organisation that staff are regularly working out of hours to get jobs done and respond to queries, it can be very damaging. Staff who are not able to properly rest after a day’s work, and continue the stresses of work out of hours, can become burned out, less productive and disillusioned in their role. This can lead to issues in retention and morale, which can negatively impact the whole organisation.

The right to disconnect works to counteract this, encouraging and indeed expecting staff to switch off when they are not working. Not only can it help promote greater staff wellbeing, but it can also be an effective way for the organisation to demonstrate it cares for its employees, something that can help retain staff and attract new employees.

In France and Spain, workers have a legal right to disconnect and it is also being considered in Australia.

France – employers with at least 50 workers must establish a right to disconnect policy on after-hours technology use.

Spain - employers are to set up internal policies defining for employees how to exercise the right to disconnect, including training for staff on the reasonable use of technology to help avoid computer fatigue. Employees working remotely are guaranteed the right to disconnect.

Ireland - a Code of Practice for organisations on how to implement the right to disconnect is in place. The three key rights enshrined in the Code are:

• the right of an employee to not have to routinely perform work outside of their normal working hours
• the right not to be penalised for refusing to attend to work matters outside of normal working hours
• the duty to respect another person’s right to disconnect (eg by not routinely emailing or calling outside of their normal working hours).

Whilst it is always good practice not to expect employees to work out of hours and therefore avoid contacting them during this time, the Code goes one step further. Not only does it prohibit this behaviour from management, but it also gives employees the entitlement to switch off their communication devices and send automated emails when they are not available. The expectation is very much that if a member of staff is contacted out of hours, they are actively encouraged to only respond when back in work.

The Working Time Regulations 1998 set rules on daily and weekly minimum rest periods and maximum weekly working hours, but workers are able to opt out of a 48-hour maximum. They cannot, however, opt out of statutory minimum rest entitlements. Employers must make sure that workers can take their rest breaks including 11 hours’ daily rest for adult workers.

So, whilst existing law entitles workers to “rest”, the minimum rest periods will rarely align with a worker’s contractual hours, which could arguably mean that communication outside of normal working hours does not always breach minimum rest period rules.

Should the Labour Party in the UK come to power, the Green Paper, A New Deal for Working People, sets out its plan to introduce a legal right to disconnect for all UK workers, and Deputy Leader, Angela Rayner, has confirmed this will form part of the Party’s manifesto going into the next election.

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