Employees will be able to claim additional compensation if their right to disconnect is "repeatedly breached"

Details are emerging about the new right to disconnect which was included in the Labour Party's manifesto pledge to make work pay. 

Although the government has said that it is still considering some of the detail, it has told the Times newspaper that:

• Employees who are “repeatedly” contacted outside their normal working hours by their employers will not be able to bring a standalone claim. However, if an employee brings another actionable claim, they will be able to include any breaches of their right to disconnect as an ‘aggravating factor’ and tribunals will be able uplift any compensation awarded, possibly by up to 25%. 
• It may introduce a Code of Practice (probably via Acas) which sets out the framework employers will be required to follow. 
• But it will not impose a one size fits all approach. Instead, it wants employers to have the scope and flexibility to find the “right balance” for their own workforce. 
• Employers will be able to agree a policy with their workforce which details when staff can be contacted out of hours.

The government has also said that it is considering the approaches taken by other countries including Ireland and Belgium. 

The Irish model

Ireland has a Code of Practice which provides guidance on best practice and includes a policy layout and template clauses for employers to adapt. The Code acknowledges that different working arrangements suit different employees but makes the point that ‘the right to maintain clear boundaries between work and leisure is universal’ and must not be compromised. 

The Code sets out three principles:

1. Employees have a right not to routinely perform work outside of their normal working hours
2. Employees have a right not to be penalised if they refuse to work outside of their normal working hours; and
3. Employees and employers have a duty to respect another person's right to disconnect by not routinely emailing or calling outside of their normal working hours

Employees don't have a standalone right to bring an employment tribunal claim but, where it is relevant, a tribunal will take into account any breach of the Code by an employer. 

The Belgium model

There is less information on the Belgium model. It appears to only apply to larger businesses (those that employ 20 or more people) and allows some employers to opt out (including those providing emergency services). Like the approach taken in Ireland, employees can't bring a standalone claim if their right to disconnect is breached. 

Which model does the UK government prefer?

It doesn't look as though our government will mirror the approach taken by Ireland or Belgium which is describes as “blunt instrument[s]” which haven't “taken into account the diversity of sectors and roles”. It suggests that it can achieve the right to disconnect in a “more elegant and sophisticated way … that's pragmatic and will benefit employers and workers”. 

That suggests that employers will have a fair bit of wriggle room in terms of the rules they put in place to implement the new duty.   

When will the right to disconnect come into force?

We don't know. We expect it to be included in the Employment Bill which is due to be published soon. Some of the proposals contained in the Bill will be subject to consultations, and the Bill itself will have to go through the usual parliamentary scrutiny. 

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Government source “This is an ongoing discussion, we’ve not settled on a position yet, [but] it has to be specific to each workplace and therefore it has to be something that businesses and their workforce agree among themselves rather than a diktat — and we’re conscious of the disproportionate impacts of these sort of policies on smaller businesses, that will factor in to how we draft it,””