Kate Wyatt: Companies may need a policy on work emails and calls after hours

Recent legal developments have raised the stakes on out-of-hours communications, and there are growing calls to give workers the right to disconnect.

Kate Wyatt is a Partner in Lindsays Employment team

In addition, a wide range of multinationals – including Volkswagen and Axa – have introduced company policies against workers’ ‘hyper-connectedness’. It’s all part of a drive to protect workers against burnout and 24/7 work pressures.

There are no plans to introduce a legal right to disconnect in the UK, but staff wellbeing and engagement are issues for every business, regardless of location. Developments in Europe and the US on the right to disconnect could offer pointers on possible problems, or solutions, in your own business.

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In France, organisations with more than 50 workers must now negotiate on employees’ rights to ignore their smartphones and other devices outside working hours. The law, called the El Khomri law, after the minister who introduced it, offers companies a substantial degree of flexibility in how they implement this right. However, the right to disconnect does have teeth, as a recent case shows.

In July 2018 the French supreme court, the Cour de Cassation, ruled that a French branch of the British firm Rentokil Initial had failed to respect a senior employee’s right to disconnect. It had required him to be continually available by telephone to deal with problems raised by junior staff or customers – including when he was not at work. This, the court found, contravened French law, and he was awarded €60,000.

Perhaps even more unsettling for employers is a case in Ireland, where the employee had voluntarily remained connected.

The employee, a business development executive, said she’d been obliged to remain online in order to complete her duties. This took her well over the statutory maximum 48 working hours a week.

Under Irish legislation, employers must not ‘permit’ employees to work in excess of the weekly limit. Here, the employer had done just that, by being aware that the employee was working substantial hours over the limit and failing to do anything to stop it. The employee was awarded €7,500.

So what are the lessons for business?

While the French and Irish cases both involve national law, there are lessons to be learned, not least that good housekeeping on working time is important, such as keeping records of working time and taking appropriate action if staff are working longer than their contracted hours.

A second lesson is that the tide may be unstoppable. The EU is proposing to strengthen the right to disconnect, and Italy has introduced a right for some workers to be ‘disconnected from technological equipment’.

And across the Atlantic, New York City Council is considering a law that would ban companies from requiring workers to respond to out-of-hours communications. Employers would still be able to send them, but wouldn’t be able to discipline workers for ignoring them.

Does all this mean that UK employers should do more to permit – even oblige – staff to ‘disconnect’ outside working hours? Perhaps not. Because it’s worth bearing in mind that the right (or obligation) to disconnect is not everyone’s cup of tea. For instance, many people like the option to leave work promptly, and then catch up with emails later in the evening, or on their morning commute. In an international organisation, out-of-hours availability may be vital to allow calls across time zones.

As a result, simply limiting out-of-hours messaging or access to emails may alienate as many staff as it pleases. But we do recommend starting a conversation business-wide, gauging staff concerns and preferences, and trialling possible solutions.

When doing this, there are two important things to remember. First, the conversation should include people at different levels of seniority, with varied working patterns. Second, senior staff have to set the culture. If you do adopt a company policy, you should follow it yourself.

Kate Wyatt is a partner in Lindsays’ Employment team