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Over the past decade, we have seen an emergence of legislation surrounding the rights of employees to not be contacted or expected to respond to work communications outside of working hours. Right to disconnect, right to switch off, or right to rest – call it what you will – these laws have received plaudits from employees and unions in several countries following the direction first set by France in 2016. The most recent country to follow suit was Australia, which in February 2024 passed its own right to disconnect legislation, which will soon be enacted into law. But do these forms of legislation achieve their desired aim of protecting employees’ rights without negatively impacting productivity and harming business, especially in a tight labour market with talk of recessions growing louder?

The legal landscape

Firstly, it’s important to explain the Australian right to disconnect in more detail. The way that Australian policymakers have approached the legislation is at a national level, centred around the reasonability of the request by the organisation within the unique circumstance of each employee. The legislation outlines that employees can refuse to read or respond to work communication by an employer outside of working hours unless the refusal is deemed unreasonable by the employer. The circumstances that can determine this reasonability include the reason for the contact, the level of disruption caused, the nature of the employee’s role and responsibility and the employee’s personal circumstances, including caring responsibilities. The legislation’s design and complicated exceptions have generated a predictable reaction from the business community, with the Australian opposition parties indicating that they would overturn the law if elected.

In contrast, France’s 2016 law focused on the right to disconnect from digital tools and applies to all organisations of over 50 employees and a trade union representative. In contrast to the Australian legislation, France’s approach requires organisations to include the right to disconnect in mandatory annual negotiations with trade unions. Failing an agreement with the union, the employer is required to create a charter with input from work councils and/or employee representatives. Organisations whose employees have a fixed annual number of working days will have to define their employees right to connect through a collective agreement or charter.

Another interesting example is Kenya, which in 2022 published a bill to provide employees with the right not to be contacted outside of contractual working hours. Kenya’s approach was more closely aligned with France’s in that it required employers to create a policy about specific circumstances in which employees can be contacted outside working hours and when this right can be waived, and to specify the nature of compensation for employees who work outside of contractual hours. This law applies to all organisations with more than ten employees, with the requirement to consult staff or trade unions about their right to disconnect policy.

Balancing productivity and wellbeing

While some businesses express concerns that such legislation might hinder productivity, it’s crucial to consider the broader picture. For some business leaders, these forms of legislation will be seen as overly onerous for businesses, linking them to recent trends promoting work-life balance, such as “quiet quitting“, and viewing them as an excuse for employees to log off early.

However, there is an argument that well-rested employees who can truly disconnect are more likely to be engaged, focused, and productive during their working hours. Conversely, constant stress and burnout can lead to decreased performance, increased errors, and missed deadlines.

As with complex issues that cross international boundaries for businesses, many will also challenge how legislation to enforce a right to disconnect can be appropriate across different organisations and even down to a role level, with the significantly different demands and related working hours between different role types.

Prompting the right conversations

On the other hand, many view these laws as necessary to encourage organisations to practice what they preach regarding work-life balance. There is also the potential to link the development of right to disconnect laws against the backdrop of other emerging trends, such as an increase in return-to-office policies, stipulating minimum in-person office attendance (we covered this in a piece written in 2023 by Cathy Acratopulo on whether return to office is a positive thing or a pitfall). Are these laws necessary to recalibrate the balance of power between employers and employees in an era of low economic growth and unemployment?

When designed correctly, these laws are far more nuanced than simply protecting employees’ personal time. The examples of France and Kenya demonstrate that they can instead prompt employers and employees to have productive conversations about the right balance for their organisation. Is setting the right parameters to encourage dialogue between both parties the key to these laws being successful? This can, therefore, enable a high-growth start-up to agree on a right to disconnect policy that fits their organisation’s needs, while an organisation in finance or advisory work can agree on suitable scenarios where communication outside of working hours is acceptable for all parties. This involvement from all parties can also ensure that a right to disconnect policy is aligned to an organisations EVP, and where it is done correctly, it can be a great opportunity for employers to attract the best talent by providing clarity on how their working environment is aligned to their purpose and values.

In summary

Far from being overly prescriptive and a barrier to business, when designed correctly, right to disconnect legislation can help enable the right dialogue between employees and employers on how to create an appropriate policy to promote employee wellbeing and prevent burnout while not hindering the needs of different role types or organisations.

The United Kingdom has yet to propose a right to disconnect legislation, but should it follow suit? How would this form of policy be received in the UK business community, and how could it be designed to benefit both employers and employees?

If you’d like to talk to us about how your business is assessing this legislation and how to embed this on a global level as part of your employee value proposition, reach out to us for a chat using the form below.