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Out of Sight, Out of Mind

17 April 2020. Published by Poppy St John, Trainee Solicitor

Is a 'right to disconnect' a productive workplace policy?

Since the arrival of the smartphone, many employees are expected to work outside of the normal 9-5 as the workplace is accessible round the clock. Employees (particularly with work-issued devices) are expected to be almost eternally contactable. To counter the prospect of never really being able to mentally 'leave' work, legislation to impose a 'right to disconnect' is being contemplated around the world to help protect employees' access to a personal life away from their desks.

In France, this has already happened with the introduction of a new law protecting the right to disconnect for any employee using smartphones as part of their work. The law also obliges any French company of more than 50 employees to regulate the use of work-issued devices to ensure they are not used excessively. Under this new law the French Supreme Court exercised its new powers for the first time and ordered a company to compensate a former employee €60,000 for repeated contact with them over email and telephone outside normal working hours.  In a similar Irish case, the Irish court also found in an employee's favour and the EU is considering proposing the right to disconnect as a standalone human right.

A right to disconnect could be put into practice in various ways. Email inboxes could be locked after hours until the employee returns to their desk the next day. Companies could place a ban on calls to an employee's phone outside work hours, or implement a two-tier system in which, for the first hour after normal work hours, the employee can be contacted for urgent problems, but after the hour elapses they have officially disconnected and may not be contacted. The most extreme suggestion entails automatically deleting emails sent while the employee is out of office – though this could have significant commercial drawbacks in practice, particularly if a company has offices in multiple time zones.

There are clear benefits to a right to disconnect. Employees' wellbeing is likely to improve if they are able to totally separate themselves from work and enjoy downtime with no strings attached. It may also improve productivity if they know that they only have a set amount of time each day in which to complete their work. The elusive work/life balance could finally exist for some workers who are obliged to set aside time at the weekend in case their employer contacts them.

However, all is not clear-cut. The right to disconnect poses a significant threat to another critical wellbeing trend – flexible working. It is only relatively recently that the practice of allowing employees to work from home, or at hours that suit them, has become mainstream, and this is challenging at best without restricted access to portable technology. If people want to complete their daily work outside of traditional office hours – if they have parenting responsibilities, for example – then this law could thwart their flexible working capability. It could lead to a decline in productivity if people are unable to work at the most suitable time for them and some people may even suffer anxiety if prohibited from replying to important emails, especially if they have management duties and shoulder significant commercial risk for the company.

It's all very well aiming for a balance in communication, but the reality is that this may conflict with client expectations. This is particularly a problem for companies with international clients who are based several hours ahead or behind and may need to make urgent contact during their own business hours. Companies who implement such policies will need to consider the impact it may have on the quality of their client service.

The best solution might be a compromise: allowing employees the right to choose to disconnect without forcing them to or limiting their flexible working options as a result. Legislation may therefore still be a while off, though individual companies are free to implement these practices by choice as part of their own internal policy. As wellbeing and emotional health in the workplace become more and more prominent, their impact on traditional working practices is not to be underestimated!