Employees who are consistently contacted outside of their working hours could receive enhanced compensation in accordance with the government’s plans to create a ‘right to switch off’.
The “right to switch off” was first introduced by the government as part of its election campaign and promised to ensure that “people’s homes do not become “24/7 offices”.
Although the government is yet to formally confirm details on how this right might look, it has recently told the press that it is considering how such a right would operate in practice.
Although it is clear from the article that the government has “not settled on a position”, it suggests that a penalty would apply to companies which “are shown to repeatedly breach agreements on out-of-hours working”.
The article further suggests that the right may be implemented via a Code of Practice, which might operate in a similar way to the ACAS Code of Practice on disciplinary and grievance procedures.
Although a breach of such a Code wouldn’t give employees a standalone right to bring a claim in the Employment Tribunal, it could be considered as an aggravating factor when deciding the amount of compensation to be awarded in respect of another actionable claim. Currently a breach of the ACAS Code of Practice on disciplinary and grievance procedures can lead to the amount of compensation awarded being increased by up to 25%.
This said, the government has made clear that it won’t enforce a universal system on all employers. It has said that it will allow employers the flexibility to find the “right balance” for their workforce and it is expected that employers will be permitted to agree a policy with their workforce which will set out when staff can be contacted out of hours.
The government has also said that it is considering the approaches taken by other countries including Ireland and Belgium. Both the Irish and Belgian schemes take a relatively soft approach to implementing the right, with no direct sanctions attaching to it in either model.
For more information on the changes proposed by the new Labour government, please see our previous newsletter, or alternatively contact a member of the Employment team.
