Many employees are working harder and for longer hours than before the Covid-19 pandemic, and many are increasingly required to (or feel that they are required to) monitor and respond to their work emails and any work calls and voicemails out of hours. This is having a serious impact on the health and wellbeing of some employees, and some trade unions and others are asking that a legal “right to disconnect” is introduced in the UK to safeguard the wellbeing of employees and their families.

In this article, Michelle Chance (Partner) and Chris Warwick-Evans (Associate) consider the nature of an “always on” work culture and its impact on some staff, the law in this area and what has been implemented abroad to counter the “always on” work culture. They also identify some of the key considerations for employers to start addressing now to protect employee wellbeing and to avoid the risk of successful claims by employees, and to become (or remain) an employer of choice given the increasingly competitive nature of recruitment in many sectors as the economy starts to recover and hiring increases.

An “always on” work culture

Although the issue of an “always on” work culture, whereby employees can be contacted electronically (e.g. by email and phone) out of hours and may be required to respond to their employer (or customers) out of hours, existed well before the start of the Covid-19 pandemic, the issue has recently risen-up the list of concerns many employees have, and has resulted in demands for a legal right to disconnect (which we discuss later below).

In particular, with more employees working from home than ever before because of the pandemic and the enforced shift to remote working where this is possible combined with better access to sophisticated technology such as smartphones and laptops which facilitate remote working wherever there is internet access, staff working remotely have been working harder and longer hours. The boundaries between work and home life have also become less distinct.

For many employees, the absence of a commute has made the start and end of the working day less clear and work now often starts well before the contractual start time and continues into the evening, with emails being received out of hours and often very late into the evening and in some cases into the early morning. Some employees have also reported having to participate in Teams and Zoom calls well outside of their contractual hours for no strong business reason, often with little warning or consideration for their personal circumstances or commitments, and subsequently being required to turn work around extremely quickly. Many employees are also finding that they now receive many more emails over the course of the weekend and during their annual leave.

More concerningly, some employees have also recently reported an increase in receiving emails outside of their contracted working hours which clearly require or demand an urgent substantive response by their employer (or customers). Many trainees or junior employees are likely to find this demanding, particularly where they are anxious to perform to a high standard though may not feel they can disturb their colleagues to check the correct approach. On other occasions, the recipient of an out of hours email may not be able to determine the urgency (or otherwise) of the email they have just received, and then have to deliberate whether the sender is genuinely demanding an immediate response or is merely trying to use their own down time to clear their own task list. For some employees, this results in them feeling under real pressure to be “always on” and to respond promptly even where this is well outside of their contracted hours, which in many cases is simply not what the sender anticipated or required.

Although the most reasonable and considerate managers (and customers) will often make it clear to staff when an out of hours email requires an urgent response and when a response can wait until the recipient’s contracted working hours, this is currently unfortunately the exception rather than the norm in many sectors. However, employers and managers should note that even where it is made clear in the body of an email received out of hours that the response can wait until the recipient’s contracted working hours, unless this is also clearly indicated and evident on a cursory review of the email (for example, in the email subject bar or header), the employee will still have been required to read and engage with the email during their (unpaid) downtime in which they should be relaxing and re-charging.  This may well still have a significant impact on employee wellbeing (which we discuss below), especially where there are many such emails to deal with. Managers should instead consider delaying the delivery of non-urgent emails. This is easy to set up as a general rule for all emails or for specific emails and IT departments can assist with that. In our view it should become the automatic default setting for all non-urgent emails.

What’s the problem?

An “always on” work culture is resulting in personal and professional lives becoming blurred and some employees have described their current working situation as “sleeping at work” rather than “working from home”. Work/life balance has now become work/life integration and not necessarily in a healthy and positive way.

This has resulted in many employees not being able to properly switch-off from work outside of their contracted or usual working hours, particularly in the evenings, at weekends or when on annual leave. This is interrupting family life and damaging employee wellbeing, and for some employees is having a profoundly negative impact on their mental and physical health. For a minority of employees, an “always on” work culture is resulting in stress, burn out and exhaustion, and in some cases depression and anxiety.

Employees who are strongly negatively impacted by an “always on” work culture are likely to become disillusioned and may become less productive, and morale is likely to be lower than it would be otherwise. Consequently, as the economy is beginning to recover from the pandemic and hiring picks-up, employees who feel they are strongly adversely affected by an “always on” work culture may look to change employer (or sector), and this will increase staff turnover and result in additional recruitment and training costs for the former employer.

Given that women still bear a disproportionate burden of caring and domestic responsibilities, although this has balanced out a bit more during the pandemic, it is also likely that an “always on” work culture will place particular stress on female employees at all levels, and may act as a barrier to female promotion and progression in particular where there is insufficient support at home and they cannot routinely respond to work emails or participate in calls well outside of their contracted or pre-pandemic usual working hours.

For those employees with the least reasonable or considerate managers, there is also the risk that employees who have insufficient respite from an “always on” work culture may resign and claim constructive unfair dismissal, though this is relatively rare in practice. There are also health and safety and working hours risks which stem from an “always on” work culture which we discuss later below.

A right to disconnect?

Some other countries with advanced economies, including Canada, France, Germany, Ireland, Italy, and Spain have all identified an “always on” working culture as a real problem and impediment to employee wellbeing and productivity. Consequently, they have introduced codes of practice, agreements with unions and in some cases statutory changes to give employees some form of right to disconnect from work emails, text messages and calls (without repercussion(s)), so that employees do not have to routinely work outside their specified working hours. For example, in some instances this has included making it a legal requirement for employers to negotiate with their staff and agree rules on when staff cannot be contacted for work purposes or to specify that work emails do not have to be routinely monitored and responded to by employees outside of their contracted working hours.

As we would expect, employee polling suggests that the introduction of a legal right to disconnect would be popular in the UK. Although some trade unions in the UK have urged Ministers to introduce a legal right to disconnect, there are no plans of which we are aware for new laws or statutory guidance in this regard.

In the UK, many employment contracts include wording requiring that the employee shall work such hours outside of their usual contracted hours (without additional remuneration) as are necessary to perform the employee’s duties. However, although this wording is likely to give employers some comfort that their staff will work sufficient hours to ensure they discharge their duties, employers should bear in mind that even with the current absence of a legal right to disconnect, they will need to ensure that they discharge their health and safety obligations to their staff (which will include taking reasonable steps to protect staff from stress and burn out) and that unless an employee has signed a valid opt-out from the 48 hour week, average working hours (including out of hours work) must not exceed 48 hours per week. As above, employers must also ensure any requirements for their employees to perform their duties outside of their usual working hours do not breach the implied duty of trust and confidence, which if broken may result in a claim against the employer for constructive unfair dismissal.

What steps should employers be considering now?   

Even in the absence of a legal right to disconnect, employers should consider taking the steps below to ensure they comply with their current legal obligations to their staff in respect of health and safety and working time, ensure sufficient staff wellbeing such that their staff remain productive and engaged and to minimise the risk of successful employment related claims.

Audit – If the employer does not have a clear understanding of when work is being performed by its staff and what duration of staff time is spent working, it will be a useful starting point for the employer to conduct an audit to obtain a solid understanding of this. Subject to compliance with any relevant data protection rules and any applicable employer data protection and monitoring policies, this may involve checking email servers or IT systems to see when employees were logged on and for how long. Many employers have also found staff surveys to be particularly helpful with staff working outside of the office for the last year or so, and staff surveys can be used to identify and confirm typical working patterns and to determine whether an “always on” work culture has become a material issue.

48-hour week – If workers are working more than an average of 48 hours a week (or there is a risk they may be), the employer should ensure that it has a signed opt-out from the 48-hour week rules on file for the worker, or ensure that working hours do not exceed the permitted threshold.

Risk assessment – In general, risk assessments should address the risk of work-related stress and how this can be mitigated. In particular, if there is or may be an “always on” work culture for some or all staff, this should be reflected in risk assessments. If risk assessments show real risks or concerns for staff wellbeing, as an immediate short-term measure, it may be appropriate for managers or HR to signpost any support available to staff for stress etc., such as access to any staff helpline and to provide guidance on time and stress management and prioritisation and to look at potentially reallocating workloads between staff more fairly. Where appropriate, employers should then consider what additional steps (as set out below) may be beneficial and practicable for it to implement.

Employee Policies and Processes – Depending on the results of the audit (if required) and any risk assessment, employers should consider whether there is a need to introduce policies and systems to address and mitigate an “always on” work culture.  We would generally recommend that such policies are non-contractual for the employer to ensure employer flexibility is maintained and to avoid claims for breach of contract in the event of non-compliance by the employer. Although what may be appropriate should reflect the different commercial, regulatory and ethos of different employers, and may well differ for different categories of employee (for example, by role and grade), appropriate policies and processes may include:

  • Use of email headers and footers making it clear (where appropriate) that there is no requirement for employees to reply to emails received out of hours.
  • Automatically delaying the delivery time and date of all non-urgent emails to normal working hours.
  • Limiting out of hours access to work email servers for junior and non-managerial staff, or using technology which permits the sending of emails out of hours though delay receipt by certain grades of employee until their usual working hours.
  • Using an explicit policy to confirm what is expected from employees, for example, in respect of them monitoring their work emails (and any other form of electronic communication used by the employer) and responding to the same outside of their contracted working hours and what is acceptable from managers in this regard.
  • Considering how much (if any) contact with work is required from those taking annual leave to ensure they can properly switch-off. This may well involve agreeing with the employee that they check their emails once or twice a day when they are on annual leave or require a handover of the employee’s duties immediately prior to the start of their holiday and provision of the employee’s contact details whilst on holiday for emergency use only, and should be reflected in the holiday (or other) policy. The policy/procedure should also deal with communication by mobile phone, text and Teams and WhatsApp message etc.
  • Managers will need to be properly trained on the policies and procedures. HR should be aware that policies are only worth the paper they’re written on if they are implemented fairly and consistently. HR should, therefore, be live to the different attitudes of managers in different departments to the “right to switch off”.

Expectation management and mitigation – If an employer operates in a sector or across time zones such that out of hours responses will be routinely required by its UK staff, the employer is likely to need to address this if it has decided that the current demands on its staff are not sustainable or appropriate. In some cases, expectation management will be appropriate though where this is not commercially acceptable, use of a staff rota system, a delayed start the next day for those employees who have had to work during the night, or time off in lieu may be more practicable.

Embed change – If an employer decides to implement revised policies and processes to mitigate an “always on” work culture, this will need to be embedded in training and picked-up in staff reviews and appraisals in some circumstances (e.g., where senior staff repeatedly interrupt junior staff on holiday for no good reason).  For any changes made by employers to be meaningful and embedded in the business, staff at all levels will also need to feel that any new policies or procedures are more than mere “window dressing” by the employer, and that they can raise concerns (without repercussion) with their managers in respect of material non-compliance.

Exit Interviews – Exit interviews should be routinely held for departing staff, and departing staff should be asked whether an “always on” work culture is a factor in their departure from the employer and whether any policies or processes designed to mitigate an “always on” work culture are being properly adhered to and if not, appropriate follow-up action should be taken by the employer.

Further Comments

It is our strong view that in the UK private sector (and some parts of the public sector), the issue of an “always on” work culture is not going away anytime soon, particularly as employees are desperate to retain their job security at present given the uncertainty that the Covid pandemic has given rise to and an “always on” work culture is at times preventing many employees finding an appropriate work-life balance which works well for them and their families. A minority of employees are also being placed under extremely high levels of stress as a result of an “always on” work culture.

Although the introduction of a legal right to disconnect is popular and superficially attractive, it does not reflect the commercial realities facing many employers, especially in the highly competitive professional services sector or certain international businesses which often require a prompt response across time zones with input from UK staff at all levels to ensure that fees are kept competitive. However, in our experience, there are employers across a variety of sectors who are keen to take reasonable steps to protect their staff from the “always on” work culture to the extent it is reasonable and practicable to do so, and this is a live issue for many employers currently.

It is also worth noting that on closer inspection, a right to disconnect does not necessarily sit easily with the increased flexibility as to when and how employees work which many employees have reported enjoying over the last year or so. In particular, those in the UK who are pushing for a legal right to disconnect, should in our view bear in mind that if such a right is ever implemented in the UK (and there are no strong signs this will be the case in the short term), this may well result in employers becoming less flexible with their employees as to when and how they perform their duties, and this may be an unexpected consequence of any such reform.

Further, a right to switch-off or steps taken to mitigate against the “always on” work culture, whether statutory or implemented by employers of their own volition, would be hard to implement properly unless all in-scope employees adhere to such rules. If adherence was or became optional over time, such that only some employees enforced any right they may have to disconnect or properly switch-off from work, given the disproportionate amount of caring and domestic responsibilities undertaken by women, it is likely that more women than men would enforce any such right to disconnect. If employers are not mindful of this risk and do not properly address it before it became a material issue for their female employees (and their allies), this would be likely to deprive some women of the valuable experience and opportunities necessary for promotion and progression, and this may give rise to victimisation and detriment type claims.

We regularly advise employers on all employment law and employee relations aspects related to working hours and rest breaks, health and safety, contracts of employment and employer policies and procedures (including in respect of work and the appropriate use of emails and phone calls out of hours and during annual leave). Please do not hesitate to get in touch if your business would like to discuss any of these issues or if you are a senior executive or senior professional looking for practical and strategic employment law advice on your own situation.

Authors: Michelle Chance, Partner and Head of Employment and Chris Warwick-Evans, Employment Associate at leading City law firm, Rosenblatt Limited.

*This article is not legal advice and is for general interest only.

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