Switching Off – “The Right to Disconnect” from Work-Related Communication

Daniel Anstey, Graduate Associate

THE RIGHT TO DISCONNECT?

Most of us in 2019 have heard the clichéd aphorism that smartphones are “blurring the lines” between the workplace and the home, and many of us have experienced this ourselves to some degree. For the modern-day employee, it is becoming second nature to type out an email after dinner or to read “Microsoft Teams” messages while brushing your teeth.

Advances in smartphone technology, and the proliferation of innovative work-related apps have greatly improved the connectedness, productivity and flexibility of workplaces. However, it is becoming clear that being constantly connected in this way can come with a catch. Research has shown that workers who are “always on”, tend to have higher levels of stress and anxiety, and a worse quality of sleep leading to burnout and exhaustion. Indeed, it has been shown that the mere expectation of availability can increase strain for employees and their families, and negatively impact mental health.

The question also arises whether workers are being adequately remunerated for such after-hours work, potentially undermining the historical progress in reducing and limiting the maximum work week. It follows that regulation of the labour market has become more difficult, especially in terms of enforcing the National Employment Standards, calculating hours worked and extracting correct taxation.

But what can we do about it? Are we to all remain at the beck-and-call of the work email at all hours? Is the sanctity of the home and good old-fashioned peace and quiet doomed to fall victim to the indomitable rise of the smartphone?

What can the law do about this?

Several countries have begun to address these concerns by creating a new human right – the right to disconnect. France led the way in 2016 with the famous El Khomri law. Part of the Country’s reformation of its labour laws included a right for employees and unions to negotiate arrangements and policies on technology use outside of the workplace to protect employees’ personal and family time.

The changes have been immensely successful and been used as a model for similar laws subsequently implemented in Italy, Germany, Spain and the Philippines, with dozens more countries currently debating similar bills in Parliament.

Surprisingly, even in the city that never sleeps, the New York City Council is currently debating a bill which would go beyond the El Khomri law to prohibit companies with over ten employees from requiring employees to respond to after hours communications.

Although there has not yet been much discussion on the topic in Australia, it will surely be a matter of time before it is on the horizon, especially since the International Labour Organisation has recently recommended the implementation of such a right in their 2019 report Work for a brighter future – Global Commission on the Future of Work.

Enforcement issues?

While enforcement may be difficult, such laws will have served their purpose if they can change cultures and attitudes in workplaces and facilitate fruitful discussions to give employees what the ILO refers to as time sovereignty.

Differing methods of enforcement have been adopted in France, with some employers simply encouraging workers not to check emails after hours, and others going as far as setting their internal servers not to route emails to employees who are off work.

Concerns have been raised that legislating limits on around-the-clock communications may hurt a company’s bottom line. However, the ILO suggests that providing employees with greater time sovereignty may result in improved health and well-being which in turn may have a flow on effect to the productivity of an organisation.