The Right to Switch Off – Balancing Home and Work in the New Normal

Before the pandemic working from home was mainly the preserve of those who since the inception of the lap-top and WIFI combination could work anywhere. Only a few, somewhat elite, professions worked in this way as a matter of course. It seemed the ideal lifestyle providing freedom and autonomy to those lucky enough to be either self-employed or working for those who had the foresight to encourage such flexibility in their workforce.

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Eighteen months on many who never would have seen themselves working from home still are and not everyone is thriving. Home and work-life has been blurred as never before and whilst it may feel like a privilege to work from home it certainly isn’t the same as “living at work.”

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The pandemic has thrust many into a new way of working, which, when combined with the ability of technology, although not all of us, to operate round the clock and instantaneously, has led many to burn out. I am old enough to recall the days when correspondence was opened once a day, perhaps twice and responses took days so the “back and forth” of any transaction was spread at a pace when you had time to think in between. Now, emails can be sent at any time of day or night and a response demanded likewise. The pace of work has increased and the length of time we spend doing it has likewise. The ILO reports that the number of people working long hours is increasing, and currently stands at 9% of the total population globally.?This trend puts even more people at risk of work-related disability and early death. The COVID-19 pandemic has significantly changed the way many people work,“ says Dr Tedros Adhanom Ghebreyesus, WHO Director-General. “Teleworking has become the norm in many industries, often blurring the boundaries between home and work. In addition, many businesses have been forced to scale back or shut down operations to save money, and people who are still on the payroll end up working longer hours. No job is worth the risk of stroke or heart disease. Governments, employers and workers need to work together to agree on limits to protect the health of workers.

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The latest estimates from the Labour Force Survey (LFS) show that the total number of cases of work-related stress, depression or anxiety in 2019/20 was 828,000, a prevalence rate of 2,440 per 100,000 workers. This was statistically significantly higher than the previous period.

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In this context it is clear that as the way we work has radically changed and placed new pressures on workers new measures are needed to meet this latest challenge to ensure that the UK continues to lead the way in workers rights.

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However, the UK is it seems lagging behind its European neighbours in tackling this latest issue. If many of us are working from home, when and how do we switch off and how do workers protect themselves against bosses whose demands mean that they cannot or do not without fear of discipline or dismissal?

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The first European country to legislate on the right to disconnect was France in 2017, long before this current crisis. In 2018 Spain followed with a suite of measures and the Republic of Ireland introduced a new code of practice in April this year which requires employers to have a policy in place which confirms that employees have the right not work outside normal working hours.

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In the UK existing health and safety and working time laws may assist in arguing that an employer has breached its existing duties to an employee to provide a safe place of work and not exceed specified working hours. Likewise, a bullying and oppressive approach taken by an employer might entitle the employee to argue that they have been constructively dismissed, the employer having breached the implied term of mutual trust and confidence or express provisions of these existing measures. Should the treatment be linked to a protected characteristic the worker may rely on existing discrimination measures.

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The Labour party has said that it wants to see flexible working as far as is reasonable and practical but that workers should be given the “right to switch off” when they have left for the day to ensure homes don’t become “24/7 offices.” The Trade Union Prospect, general secretary Mike Clancy said his union supported flexible working but added that “‘flexible’ has to actually mean ‘flexible’, not simply moving work from the office to home with the same long hours, ‘always on’ culture.”

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“The challenge as we exit the pandemic is to make sure we build on the flexibility workers want and reset the boundaries between home and work life.”

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On 21 January 2021, the European Parliament approved a resolution on the right to disconnect with some recommendations to the European Commission on the text of a Directive. The right is defined as “the right for workers to switch off their digital tools including means of communication for work purposes outside their working time without facing consequences for not replying to e-mails, phone calls or text messages”.

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A key part of the Directive is that failure by employers to allow employees to switch off will be “protective, proportionate and dissuasive penalties.”?Taking a stricter approach than many countries who have so far adopted a more policy/consensus-based approach.

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Whilst the UK will not now be bound by the Directive, given the high prevalence of work related stress, some of which may be caused by the increasing pressure to be ever “ on” and lack of monitoring of home based staff, such measures must be surely be advisable to ensure that the UK remains a healthy and desirable place to work. 17.9 million working days were lost due to work-related stress, depression or anxiety in 2019/20 according to the Labour Force Survey (LFS) and 828,000 Workers suffered from work-related stress, depression or anxiety (new or longstanding). Looked at visually the trajectory of work-related stress is virtually vertical. The link between the “ever on” culture and the health and well-being of workers, which has been exacerbated by the current pandemic, is clear. A globally unified response ensuring that workers who now work in an increasingly global context will be needed and the UK should continue to lead the way.

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If you would like to develop a right to disconnect policy to help your business ensure the health and wellbeing of your staff we would love to help.

?The contents of this?article are for reference purposes only and do not constitute legal advice.