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UK and US perspectives on the right to disconnect

France drew attention at the start of the year with its right to disconnect law, which, by its title, suggests all employees have the legal right to switch off from their jobs when they leave work for the day, or are on holiday.
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The right to disconnect law, however, is actually a charter, only applicable to companies with 50 or more employees. It merely requires businesses to negotiate with unions on ways to limit digital intrusions into employees’ private lives. This could involve training and awareness of the issues and eventual agreement on technological solutions or policies on “disconnecting”.

Whilst being constantly connected may be good for business it can take its toll on employees’ mental health and productivity. Companies have a duty of care towards staff and many recognise that employees experience high levels of stress or are simply unable to switch off from work and enjoy time with family because of the emails they receive outside of normal office hours, or whilst on holiday.

These do not even need to be prolific to be a source of anxiety and so the expectation, if there is one, to check devices and respond to emails or phone calls when not at work, should be a topic of discussion to be agreed upon. Setting the boundaries will involve consideration of the nature and seniority of the role and the demands of the business including customer or client needs and time zones.

In the UK, the right to disconnect law is non-existent. Employees’ rights and obligations regarding emails, or phone calls outside of working hours are likely to be a matter of contract for employees who agree to “work such additional hours as necessary to meet the needs of the business”, or may constitute overtime, for certain employees.

Statutory protection is given by the Working Time Regulations 1998 and gives workers protection from being subjected to a detriment for refusing (or proposing to refuse) to work when entitled to a rest period (20 minutes in a six-hour day; 11 hours’ uninterrupted daily rest and 24 hours’ uninterrupted rest per week). However, many employees have waived their rights under this legislation and have agreed (subject to three months’ written notice), that these will not apply to them.

Like UK law, US law – for those based or trading there – has no direct equivalent to the right to disconnect law. And, due to its employer-friendly ethos, an American counterpart is unlikely to appear soon. As a result, US employers are free to expect, or even require, employees to be attentive to their mobile phones or laptops day and night.

In the US, the Fair Labor Standards Act (FLSA) requires most workers be paid overtime for any time worked beyond 40 hours in a given week. It also rules employees are entitled to time and one-half of their regular pay rate for each hour of overtime. These rules discourage off-the-clock work, and mean employers that allow or require employees to engage in work-related communication outside of business hours must have a way to track that time and must compensate employees for that time appropriately. Failure to do so can lead to costly wage litigation.

Whether in the US or the UK, employers can take various approaches to an out of hours email policy if they wish to try replicating the right to disconnect law. Such a policy might go so far as to provide:

• That employees are not required to reply to emails outside office hours;
• Limits on out of hours emails (stipulating a time frame during which employees are not expected respond to emails);
• For emails to be forwarded to colleagues covering different shifts, or time-zones, (although this is likely to increase email traffic and would be difficult to manage); or
• For emails to be automatically deleted whilst employees are on holiday (which is a strict response to the problem and must entail clear back up procedures).

A better approach (and one which probably serves many businesses already) is to have a sensible policy that permits employees to check emails periodically, but does not demand they do so and does not oblige them to respond unless important enough.

Andrea Ward is a senior associate at McGuireWoods London and Cameron Kynes is an associate at McGuireWoods.

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