Do ‘right to rest’ laws conflict with flexible working?

A cultural shift is happening across the globe with employee work-life balance taking a more central focus both for organisations and at government level. The recent news that Portugal has banned managers from contacting staff out of hours through its ‘right to rest’ laws is a significant step in the right direction. But with debates continuing over whether similar models could be applied in the UK, we need to consider whether these might conflict with the flexible working model we’ve come to enjoy.

According to statistics published by the Health and Safety Executive in November 2020, 17.9 million working days were lost to poor mental health in 2019/2020. Many organisations are taking steps to make positive changes to better support their employees and it’s encouraging to see some governments also working to protect the work-life balance. For example, Ireland recently published its Covid-19-conscious Code of Practice which includes a ‘right to disconnect’. The Code defines the ‘right to disconnect’ as (i) the right of an employee to not routinely perform work outside of normal working hours; (ii) the right to not be penalised for refusing to attend to work matters outside of normal working hours; and (iii) the duty to respect another person’s right to disconnect.

Taking it a step further, Portugal’s new ‘right to rest’ laws lay out the potential for firms to be fined if they do not stick within the rules - and with that threat comes a greater chance of effective policy. There are calls for a similar right to be introduced in the UK, though there are challenges to the implementation of such policies. One size will not fit all and while a ‘right to disconnect’ may be an effective tool in protecting work/life balance, depending on how it’s structured, it could conflict with the flexible working arrangements many of us have come to enjoy.

For example, a ‘right to disconnect’ which is linked to fixed hours could be more easily applied to those with ‘normal working hours’. However, the pandemic has changed the face of ‘normal’ for many employees, with office-based workers in particular enjoying more flexibility of choice in both hours and place of work. In this case, how would a right to disconnect be managed? Ireland tried to address this potential conflict in their Code of Conduct by not specifying normal working hours. Time will tell whether this is a workable approach.

The Department for Business, Energy and Industrial Strategy has opened a consultation on measures to help people balance work with their personal lives, by making the ‘right to request’ flexible working a ‘day one’ right. Currently, only employees with 26 weeks’ service have this right. The government promises to make this change by amending the Flexible Working Regulations and possibly changing the existing eight business reasons for refusing a request. However, a blanket ‘right to disconnect’ policy is not something which has ever been on the table for consideration by the UK government. It is unlikely that UK government would go as far as enshrining such a defined policy in law, but it may be that the increasing focus on mental health and wellbeing will push this up the agenda.

What is certain is that employers that aren’t taking steps to improve work-life balance will see employees starting to vote with their feet, so acting now - regardless of government intervention - could deliver significant benefits. This could be as simple as encouraging use of tools such as email scheduling to avoid unnecessary out of hours contact, or empowering workers to have more autonomy around their availability, backed up by a mindful and supportive company culture.

TLT discuss the right to disconnect on its Employment Law Focus podcast, available here.

This article was first published in People Management.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.