Right to work from home would need a new 'right to disconnect' law

By Forbes Solicitors

03 Jun 2020

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Potential new legal right for people to work from home would need a ‘right to disconnect’ law to protect workers’ mental health Right to disconnect law exists in France and means workers can switch-off phones and emails outside working hours  Right to request flexible working will be more realistic approach for a new generation of agile workers 

If the government approves a legal right for people to work from home, it will also need to create a new ‘right to disconnect’ law, according to legal experts.  

A ‘right to disconnect’ law would be needed to protect the mental health of a new generation of home workers, whilst also enabling companies to fulfil their duty of care to staff and not be exposed.

No such disconnect law exists in the UK, but one was introduced in France at the beginning of 2017. This isn’t just for home workers. It means that companies have to allow employees to switch-off work mobiles and emails outside of their contractual hours.

A similar law in the UK would require employees to disconnect from their work devices and networks when they’re not working, which would avoid the blurring of personal and professional lives, as people increasingly work in their homes.

Emma Swan, head of commercial employment law at Forbes Solicitors, explains: “Under UK employment law, employers have a duty of care to protect the health and wellbeing of staff. This will become increasingly challenging if more people are working at home.

“The pressures of remote working, home-schooling and the current health and economic challenges could significantly impact people’s mental wellbeing and it can be difficult for employers to spot the signs of this without regular face-to-face contact. A right to disconnect law would go some way to stopping people working in their free time when they shouldn’t be. This needs to be carefully balanced with employers’ ability to offer flexible working from home around the current challenges.”

A right to disconnect law would be difficult to introduce. It would need to consider the practicalities of employees continuing to work offline outside of working hours, even though they were supposedly disconnected, and could also present challenges in terms of monitoring employee data. 

Daniel Milnes, a governance and information law partner at Forbes Solicitors, says: “While a right to disconnect would preserve non-work time for employees, it’d probably require employers to monitor what staff do during this time. Such monitoring does not require employee consent as it would be associated with workplace health and safety – a category the right to disconnect falls into. Data protection policies would also have to be taken into account, with time limits placed on when data should be processed electronically, and disciplinary policies considered accordingly for any breach of the disconnect rules.

“The French law first applied to home-workers and then to all employees in businesses with over 50 staff. Debate has already started about whether an employee who has got home after a day working in an office or travelling is any less deserving of protection than someone who has worked the same hours from home. There’s also a consideration about whether working agreed overtime is any different to dealing with emails after usual working hours.  

“It would certainly be difficult to monitor how employees disconnect and could create the unusual position of employees trying to conceal when they were working. Managing a right to disconnect with rigid hours, even if negotiated business-by-business as in France, will present significant challenges to employers.”

Rather than a right to work from home, it could be more practical to allow employees the right to work flexibly. This would avoid any immediate need for the introduction of a right to disconnect and provide both staff and employers with a more balanced approach to managing health and wellbeing.

Emma Swan concludes: “There are already Flexible Working Regulations in existence. Adapting these would be more practical for everyone, rather than trying to pass two very new and untested laws. This could help companies and their staff to better blend workplace and remote working, proving beneficial to employee health and wellbeing, and how companies support their employees with maintaining a work-life balance.”

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