The Labour party is considering a proposal to introduce a “right to disconnect” (a so-called right to switch off) if it wins the next general election. It follows an increasing trend since 2017, especially across Europe, of introducing restrictions on employers contacting workers outside normal working hours or protecting employees who choose not to engage with their bosses during such hours.

The rationale for the right to switch off

Recent studies have shown some support amongst workers for a right to disconnect in the UK, especially following the pandemic. COVID lockdowns resulted in many workers having greater access to digital tools (work phones, laptops, apps, etc.) which allowed them to work from home for extended periods for the first time. This flexibility, at least in part for most workers, looks set to stay. Whilst some workers welcome the flexibility, others cite concerns that the line between home life and their work life has become more blurred, and now that they are accessible to their employer outside normal working hours, there is a heightened expectation that they will engage with work outside these hours. Labour says that the right to switch off is needed to ensure that homes don’t turn into “24/7 offices”. The proposal forms part of Labour’s “New Deal for Working People” and is currently being considered by the party’s national policy forum this summer ahead of preparations for its next manifesto.

Labour is not the first party to consider this right. The right to disconnect is starting to receive greater recognition, particularly in Europe. For example, in December 2022, the Scottish government agreed to a right to for civil servants to disconnect from work outside normal working hours without being penalised or pressurised to routinely work outside these hours. Ireland’s Workplace Relations Commission has issued a Code of Practice on the Right to Disconnect. Countries such as France, Belgium and Italy have also implemented laws providing for some form of switch off right, in some cases with penalties imposed on companies which fail to comply.

What is the current position under English law?

Whilst some businesses are proactively implementing policies around disconnecting or not contacting workers outside working hours on an informal basis or as part of welfare and wellness programmes, there isn’t currently a formal legal right to disconnect from work in England and Wales.

The Working Time Regulations 1998 set limits on the number of hours per day/week that a worker can work, as well as provisions for adequate rest breaks and holiday entitlements. This includes a limit of an average of 48 hours per week as well as 11 hours’ uninterrupted rest per day and 24 hours’ uninterrupted rest per week. Employers can face fines, compensation payments and, in the most serious cases, criminal convictions for non-compliance where these limits aren’t met.

There are also regulatory requirements for employers to safeguard health and safety at work, including their workers’ mental health. In recent years (particularly post-pandemic), there has also been an increased expectation that employers will more proactively consider the impact of work on their workers’ mental health. In this context, it is widely accepted that having adequate and uninterrupted rest breaks is important.

However some, including the Labour party, have cited concerns that these protections don’t go far enough.

What could the right to switch off look like?

Labour hasn’t yet announced details about how it would implement this right and what it would look like in practice. We don’t yet know whether or not all employers will be affected (or only those of a certain size), whether or not the right will impose active obligations on affected employers, whether or not it will be enforced in practice – and if so how, or what (if any) remedies will be available to employees.

Labour says it is considering options and learning lessons from other jurisdictions where this right has been introduced. So how have other jurisdictions addressed this issue? Some examples include:

• Restrictions on workers routinely being asked to perform work or being contacted outside normal working hours.

• Right for employees to not use “digital tools” outside working hours and protection from dismissal or other detrimental treatment for those who do not respond outside working hours.

• Requirement for employers to introduce a policy on the right to disconnect, including setting out their expectations for the use of digital tools in a way which safeguards rest breaks and holiday, opportunities for training and raising awareness about the right to disconnect and how properly switching off will be monitored.

• Requirement for employers to actively engage with employees and/or unions on how the right to disconnect can be implemented in their sector/organisation.

Further details, including whether the right is likely to form part of the Labour party’s manifesto, are expected later this year.