Quick Hits
- The right to switch off would give workers the right to not have to engage with work correspondence (including emails, phone calls, and work-based messaging services) outside their contracted working hours.
- This right is intended to give “workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.”
How will the right to “switch off” operate?
The following is anticipated:
- The right may be implemented by a code of practice, requiring employers to implement workplace agreements that detail contact hours and customised rules regarding right-to-switch-off policies. Employers are expected to have the ability to tailor their right-to-switch-off policies to their specific business needs and sectorial obligations.
- Employees who receive repeated calls or business contact outside of their contracted working hours may be eligible to claim uplifted compensation if successful in a connected Employment Tribunal claim (e.g., constructive unfair dismissal or sex discrimination). Importantly, this would mean there would be no ability to file a tribunal claim for noncompliance with the code of practice alone.
The government has not yet announced what test the Employment Tribunal would use to determine noncompliance. It is expected that it will be similar to Australia (see further below) where a reasonableness test would be applied to determine whether there has been a breach of the code of practice.
Full details on areas such as how compensation will work in practice or what employer exemptions might apply are also yet to be announced. The right was not addressed in the King’s Speech on 17 July 2024, although more information may be announced in Labour’s Employment Rights Bill, which is expected to be published in early October.
How does the right currently operate in other countries?
As indicated in the “Plan to Make Work Pay” proposal, the Labour government may consult similar right-to-switch-off models already adopted in other countries, such as in Ireland and Belgium. The right to switch off (otherwise known as the right to “disconnect”) was implemented in Ireland through a voluntary code of practice, which, although not legally binding, can be relied on as evidence in claims for breaches of employment law rights. In Belgium, legislation took effect in 2023 that applies to businesses with twenty or more employees and mandates formal agreements or work rules on switching off that are reached through collective bargaining. Employers that have not implemented the voluntary code (Ireland) or the right to switch off (Belgium) are not subject to specific penalties.
France currently enforces a right to switch off and was the first country to do so. Employers with fifty or more employees are required to negotiate an agreement on disconnection from work communications with their organisation’s relevant trade union. In addition, it is now illegal to discipline an employee for failing to respond to calls or communications outside of contracted working hours. In 2021, the right to switch off became an employment right in Mexico for employees in telework arrangements.
More recently, in August 2024, Australian employees of businesses with fifteen or more employees obtained a new right that relieves them of the obligation to respond to communications from their employers outside of their contracted working hours, unless such refusal is “unreasonable.” An employee’s job role, personal circumstances, the type and purpose of the contact, the degree of disruption it causes, and whether the employee receives compensation for working outside of the employee’s contracted hours are some of the factors that will establish if the employee’s refusal is unreasonable. Effective 26 August 2025, this right will apply to all businesses and their employees.
The London office of Ogletree Deakins will continue to monitor developments and will provide updates on the Cross-Border, Leaves of Absence, Pay Equity, and Wage and Hour blogs as additional details on the proposal become available.
Emma Thomson is an associate in the London office of Ogletree Deakins.
Lorraine Matthews is a data privacy and cybersecurity practice assistant in the London office of Ogletree Deakins.
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