Kate Wyatt, Partner in Lindsays’ Employment team, discusses the topical issue of employees having the ‘right to disconnect’ given the shift to home working during the Covid pandemic.

The right to disconnect first came to prominence in 2017/18 when France introduced a form of right to disconnect, swiftly followed by a number of other European countries. This has been thrown into further sharp focus by the move to remote working during the Covid pandemic. Surveys suggest those working from home put in substantially more hours than they worked when office based – and are feeling the strain of ‘sleeping in the office’.

It has undoubtedly been challenging for both employers and employees to manage this unexpected shift to working from home, but it is important to get it right because remote working or a hybrid model looks set to become permanent for a significant number of workers. Managing the risk of burnout and ill health is therefore vital.

There is no formal right to disconnect in Scotland though there is pressure from unions for this right to be included in the upcoming Employment Bill. At present there is no indication that it will be, but it is anticipated that the bill will make flexible working the default position – which may be an opportunity to address the mechanics of remote working, including work life balance.

Despite there being no formal right to disconnect in Scotland there are two existing laws which promote that right. These are:

1. The Working Time Regulations 1998 – caps weekly working time at 48 hours on average – unless a worker has opted out. It also provides daily and weekly rest entitlements.
2. The Health and Safety at Work Act 1974 – employers must ensure, so far as reasonably practicable, the health and safety of workers at work – which will include remote workplaces.

Many employers are keenly aware of the risks of home workers putting in excessive hours and resulting burnout or adverse effects on mental health – and knock on effects on profitability.

This means that even without a specific right to disconnect, it makes sense for employers to adapt their pre-Covid ways of managing working hours and how they ensure health and safety at work so they are fit for the new working environment.

What will be helpful is open dialogue with workers or their representatives on what the new working environment will look like and on whether the right to disconnect will be a helpful part of that.

Couching it as a right rather than an obligation to disconnect may be preferable because some workers value flexibility over their working time to allow them to accommodate other obligations such as childcare.

The direction of travel does appear to be towards a form of right to disconnect. Not only have a number of EU states already introduced it, the European Parliament is contemplating legislation on managing remote working, including the right to disconnect. If such legislation is introduced, although the UK will not be required to implement, it may do so to meet level playing field requirements under the trade deal with the EU.

While we wait for developments, having an open dialogue with employees and/or their representatives on what the post Covid working world will look like – including on the right to disconnect – will be time well spent.

Kate Wyatt is an Employment Partner at Lindsays

katewyatt@lindsays.co.uk

01382 317182