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“The Right to Disconnect”

9 August 2019

“The Right to Disconnect”

Daniel Anstey, Graduate Associate

In times gone by, the boundaries between work and personal time were clear and distinct. Now,
advances in smartphone technology and the proliferation of innovative work-related applications
have greatly improved the connectedness, productivity and flexibility of employees, to the point
where a workplace could now be anywhere in the world with phone reception.

At the same time, these devices have also taken a central place in our home lives through the use of communication functions, cameras and entertainment. Studies have shown that depending on age and other factors, people on average check their phones 80 to 150 times a day, but how much of this is work-related and how much is personal will vary greatly from person to person.

It is becoming increasingly clear that being constantly connected in this way can come at a cost. Research has shown that workers who are “always on”, tend to have higher levels of stress and anxiety, and poorer 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.

What role can the law play – the right to disconnect?

So pressing are these issues in modern day society that several countries have decided that, in order to combat the problem of permanent connection, they would purport to create a new “quasi human right” – the right to disconnect. This is not a right to ignore one’s manager once they leave the office, but is more accurately described as an obligation on employers to consult with employees on their connectivity and availability outside of office hours.

The country to start this trend was France, sparked by a decision of the Cour de Cassation (the country’s highest court) holding that an employee was unfairly dismissed after being fired for not responding to work emails outside of work hours.

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 their legislatures.

How would this affect employers?

Many businesses may be of the view that enshrining this right to disconnect in law will be detrimental to their productivity and profits. However, there is every chance that the opposite could be true. Indeed, it is likely that many employees find that being able to disconnect allows them to be more productive during work hours.

As the inability to escape work-related communications is having a tangible effect on some employees’ mental health and well-being, it is likely that a “digital detox” will be greatly received by those in need of it.

Further, when faced with a choice, it is likely that many employees would not opt out of afterhours electronic communications, particularly in industries and businesses who operate across time zones and require diligent responsiveness from their employees.

If these changes do make their way into the Australian employment landscape, organisations will need to make it a priority to strike the right balance between their employees’ private lives and the business requirements of each individual organisation.

Are these changes likely to be implemented in Australia?

Although there has not yet been much discussion on the topic in Australia, it is likely only a matter of time before it is on the horizon, especially since the International Labor 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.

There may be concerns from businesses that legislating limits on around-the-clock communications may hurt their bottom line. However, the ILO suggests that providing employees with greater time sovereignty may result in improved health and wellbeing, which in turn may have a flow-on effect to the productivity of an organisation.

Posted in Strateg-Eyes.
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