/>iSo having made a “right to disconnect” for workers a manifesto promise pre-election, the new government must now do the less glamorous work of turning a political sound-bite into actual law.
Early reports are not promising – they suggest a requirement to agree a code of conduct with your workforce in relation to out-of-hours contact, where breach is enforced not in its own right but as an incidental to claims relating to other unlawful conduct by the employer, very much like the Acas Code of practice on disciplinary and grievance procedures. So that would suggest straight away that there will be no actual right to disconnect, and that unwelcome out-of-hours contact could continue unabated unless and until the employer makes some other misstep. That seems likely just to further complicate many Tribunal claims for matters wholly unrelated to and unaffected by the extent of any out-of-hours contact. After all, if you could throw in such an allegation, why not? — you open up whole new vistas of litigation disclosure, cost and delay for your employer in laboriously knocking it all down again, and so would strengthen your bargaining position no end.
It also ignores the fact that many people in white-collar sectors already have terms relating to out-of-hours contact in their contract of employment. Any provision stating working hours to be “9-5 plus such additional hours as are reasonably necessary for the proper performance of your duties” or similar is already committed to some such contact. No agreed code of conduct for those staff is going to step far away from that obligation — it is hard to see that any employer in its right mind will limit its rights to contact its employees out of hours if it genuinely feels it needs to do so, whether that is by a maximum number of contacts per month, a “not after” time at night or specifics for subject matters.
Ultimately these codes will probably all be variations on a theme – we won’t require you to respond out of hours except when it is reasonably necessary for us to do so, and then you must. Whatever the exact phrasing of the relevant code or the promised guidance, we are almost certainly going to come back to some formulation like “reasonably necessary” as the touchstone of legitimacy. Unless the intended guidance is very clear on the point, this is a recipe for grievances and confrontation around what is reasonable and what is necessary, and most particular, in whose eyes?
Realistically, “necessity” cannot be an objective test determined by the Employment Tribunal, since the ET cannot know without being there what weighed on the manager’s mind at the time the call was made or the email sent, and it is in any event forbidden from substituting its own view for that of the employer. Nor can it realistically be a test applied with the benefit of hindsight – if the employer genuinely believes the employee’s input to be required that night, it should surely not be subject to challenge just because it turns out later that it could technically have done without it. Nor can necessity be absolute, in the sense of requiring some existential threat to the business if the contact is not made. It must remain not just possible but actively desirable for employers to be able to aim at some level of competitive advantage by responding to internal or external client demands that little bit more quickly than their rivals in other companies or other countries.
As to “reasonably”, that will no doubt be a function of regularity, subject matter and seniority. If you find that you are regularly contacting a junior employee at night on key operational issues, then the reasonable step would either be to make him more senior or expressly on-call and have his pay reflect that, or hire a night shift. In all other circumstances, we would suggest that the relevant test for compliance should be one both employers and ETs are already familiar with – the range of reasonable responses. That would give employers the flexibility they need and it would also protect employees against late-night contacts which have no arguable justification, which are motivated by improper considerations such as discrimination or retaliation, or which are so numerous or trivial that no reasonable manager or employer could have made them.
Seen dispassionately, you do begin to wonder whether any of this is really necessary. Where is the objective evidence to suggest that employees are regularly being disturbed beyond the reasonable bounds of their employment contracts? Where is the evidence that many employees are compelled to answer emails out of hours where they have not agreed to do so? Where is any evidence at all that managers do deliberately make calls or send emails they know to be unnecessary? The suspicion must be that some employees feel obliged to connect at night, whether as a positive chance to shine or because they fear some unspecified sanction if they do not (whether or not objective grounds exists for that anxiety). In those cases the driver for out-of-hours replying comes from within, not from anything done by the employer. No legislation is going to alter subjective sentiments of that sort.
The new guidance will also have to accommodate at least three other considerations. First, that some employees will have no objection to out-of-hours contact and may see responding positively to it as a chance to demonstrate their commitment and so advance their case for promotion or more money. We will need to find a way around the trap into which the equivalent legislation in Australia appears to have fallen, i.e. that the employer’s favouring those who go the extra mile in that way may constitute an unlawful disadvantage to those who don’t.
Second, since no sensible internal code of conduct can be completely prescriptive about the number of out-of-hours contacts, it may not be clear when it has been breached or, for the reasons above, whether the employee has a problem with it anyway. In order to prevent an employee’s seeming willingness to assist his employer in that way suddenly being turned against it, there are good arguments that the employee should have to voice some clear objection to those calls or emails beforehand. That way both employer and employee could tailor their after-hours contact to some extent without the employee feeling exploited or the employer abused.
Last, it remains to be seen whether these new rules will come trailing the same old rights around victimisation and detriment for their actual or threatened exercise. That would mean that if I complain that my employer has sought to contact me just once more than I think was reasonably necessary (or whatever other threshold definition is used), I am then protected against unfavourable treatment in response. My employer must then be able to show that whatever it did to me was for some other unrelated reason, again at great potential cost and inconvenience to it.
There is no doubt that this new right has been easier to promise than it will be to deliver. The potential for its implementation to be grossly either over- or under-engineered (and in either case badly exploited) is very considerable. We encourage employers of all sectors and sizes to look out for the intended government consultation on these measures and then to make their position on it clear beyond argument – above all, that if the new legislation is to work for anyone, employers must be clear as to where its boundaries lie. The last thing the government can intend is that necessary business calls to employees are not made, but without clarity on that, managers will inevitably dither about whether they should, and opportunities for both employers and employees will be lost as a result.
