The Right to Disconnect – What has changed and how should employers respond?

There has been a lot of discussion about the right to disconnect provisions. Many employers have been concerned that the changes may negatively impact their business particularly given the movement towards flexible working conditions post-Covid. In many industries it is common practice for employees to communicate outside of business hours.

One of the common misconceptions is the view that employees can no longer choose to respond to contact outside of hours or that employers can no longer contact employees after work. This is not the case, the changes mean that employees now have a right to refuse to respond to contact if that refusal is reasonable. Where the refusal is reasonable, the employee is then protected from being disciplined for their refusal.

When determining if the employee’s refusal is reasonable the employee’s role and remuneration will be relevant. Where an employee is in a senior role and is paid a salary that compensates them for working additional hours it may not be unreasonable for them to monitor their emails and where possible attend to urgent work outside of hours. The same may not be true for a junior employee or a part-time employee with family responsibilities.

Many clients are asking should they update their employment contracts because of the changes. To answer this question clients should look at the hours of work and remuneration provisions in their contracts. For senior employees, those provisions should state that there is an expectation that the person will work additional hours as required and that their remuneration has been designed to compensate them for working these hours.

There may also be a benefit in preparing some guidelines for out of hours contact which may include guidance for managers around when to contact employees outside of working hours (urgency and time sensitivity), which employees to contact (level of seniority and personal circumstances) and preferred methods of communication. The guidance could also include recommendations that employees who send non-urgent email outside of working hours either do so using delayed delivery or that they indicate clearly in the subject heading that they do not require a response out of hours.