Right to Switch off

Summary: Government considering increases in tribunal compensation where ‘right to switch off’ has been breached.

Labour made a manifesto pledge to “bring in the ‘right to switch off’” in their wide-ranging ‘Make Work Pay’ paper. The Times newspaper reported over the weekend that the government is now looking at how such a right will operate in practice.

The article outlines that the government is considering an approach whereby a Code of Practice on the right to switch off is introduced (probably by Acas). Failure to follow this code would not provide a free-standing right to bring a claim in the employment tribunal. However, any failure to follow it could be taken into account as an aggravating factor when deciding the level of compensation to be awarded in other tribunal claims.

It sounds like the government is looking to give the proposed code of practice on the right to switch off a similar status to the Acas Code of Practice on Disciplinary and Grievance Matters. A failure to follow this can result in the amount of compensation awarded being increased by up to 25%.

We are still light on detail here and the proposed approach poses several questions. What, exactly, will this code of practice mandate? What level of uplift might apply? What claims will it apply to?

It is also not yet clear whether the focus of the uplift will be breaches of the proposed code of practice or of any internal policy put in place by the employer in light of it. The Times reports that the penalty would apply “if companies are shown to repeatedly breach agreements on?out-of-hours working”. This sounds like the penalty will look past the code of practice and look at compliance with any flowing internal workplace agreement. This approach would be more interventionist than the current position on disciplinary and grievance matters.

The government source quoted in the Times makes it clear that the government has?“not settled on a position yet”.