Slowly but surely, more details are coming to light regarding Labour’s proposed “right to switch off” – but is it much of a right at all?
In 2023, Labour’s deputy leader Angela Rayner told the Financial Times that Labour would, in the event of electoral success, introduce a “right to switch off”, as part of their “New Deal for Working People”. At the time, we considered what form this right might take, in light of similar rights already introduced in several European countries, as well as for civil servants in Scotland. You can read our initial analysis here.
Since then, however, there has been very little in the way of further detail regarding this right to switch off, despite Labour’s victory in the 2024 General Election. Prior to the election, Labour had expressed a desire to “hit the ground running” and introduce employment legislation within the first 100 days of entering government. But with a deadline of 12 October 2024 fast approaching, this looks increasingly unlikely.
In the meantime, other governments have been cracking on with introducing “right to switch off” legislation of their own. In Australia, a “right to disconnect” was introduced in August 2024. While this law does not ban employers from contacting workers after hours, it does give workers the right to not reply, unless their refusal to respond is considered “unreasonable”.
According to The Times, it is expected that the “right” to switch off in the UK will be implemented through the introduction of a code of practice, similar to those already in place for disciplinary and grievance procedures.
Under this code of practice, employers and employees would be expected to agree set hours during which they can be contacted, taking inspiration from approaches taken in Belgium and the Republic of Ireland. If an employer were to then repeatedly breach this agreement, by contacting the employee outside of the agreed hours, then compensation awarded to the employee in an employment tribunal could be uplifted by up to 25%.
However, it is currently understood that such breaches would not, in and of themselves, provide the employee with an employment claim. Rather, they would simply allow for the employee to claim uplifted compensation, in the event that they were bringing an employment claim for some other reason. At present, it is unclear whether all employment claims would benefit from such uplifted compensation when brought in tandem with an employer’s breach of the “right to switch off”, or whether this uplift would only be applicable to certain types of claims.
Employees and advocates of workers’ rights may be somewhat disappointed by these reports. The “right to switch off” had initially been presented as just that – a right – which would have enabled workers to switch off from work, except for in exceptional circumstances or where the nature of their role would render this inappropriate.
The rumoured code of practice would do little to enshrine such a right in UK law. In theory, an employer could repeatedly breach an agreement with their employee regarding contact hours, and the employee would have no comeback – save for, perhaps, a constructive unfair dismissal claim with uplifted compensation, if they could argue that these breaches were sufficient to breach the implied term of trust and confidence between the parties and leave them with no choice but to resign.
This would mean that the UK “right to switch off” would be rather watered-down when compared to countries like France – where, in 2018, an employer was required to pay €60,000 to a former employee for violating their “right to disconnect” during non-working hours. Under Labour’s proposed “right to switch off”, the employee would have no claim for this in and of itself, and an uplift in compensation at this level would be unlikely, save for in the most extreme of discrimination claims brought by highly paid employee claimants.
That may all sound like good news for employers. There was understandable concern around the form that a “right to switch off” might take, and whether this would be workable for certain industries or businesses. However, these are just reports for the time being, with nothing set in stone – and, as explained, there could still be serious financial consequences for employers who breach agreed contact hours with an employee, if the employee can couple this breach with a distinct employment claim.
The Labour Party Conference is set to take place from Sunday 22 September to Wednesday 25 September, and we expect that further details regarding the “right to switch off” will be announced then. We will update you once we know more.
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