The difficulty lies in the way working practices have evolved in recent years. Even in ‘9-5 companies, flexible and hybrid working patterns means people in the same company, even department, can work on slightly different schedules. For one employee, 6pm might be beyond their working hours, for another it might be perfectly fine.

There are already working examples in more than 20 different countries. France has allowed employees to ignore work emails after working hours since 2017. Australia has just rolled out law which allows employees to ignore communications after hours, however it is important to note that the law does not ban employers from sending communication. The Republic of Ireland currently uses a code of practice which ensures staff are not contacted outside of working hours, however, this is not legally binding.

So while we await the exact details of the UK’s Employment Rights Bill, employment law expert David Whincup, Partner at Squire Patton Boggs, has given us his views on the possible legislation. He said: “Having made the pre-election promise of a "right to disconnect", the new government must now do the hard work of turning a political sound-bite into hard law. It is too early to say definitively what this will mean for employers, but early reports 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 (potentially wholly unrelated) conduct by the employer, very much like the Acas Code of Practice.  

“It is not clear how this will operate for the many white-collar employees who already have relevant terms in their contract of employment.  Any employee on "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 sensible employer code of conduct is going to step far away from that obligation. Ultimately, they will 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 official 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, however, this is a recipe for grievances and confrontation around what is reasonable and what is necessary, and in particular, in whose eyes?

“Realistically, ‘necessity’ cannot be an objective test determined by the Employment Tribunal, since the ET cannot know what pressures weighed on the manager’s mind at the time the offending call was made or email sent, and the Tribunal is forbidden from substituting its own view for that of the employer anyway. Nor can necessity 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 not be subject to challenge because it turns out later that it could technically have done without it -- or absolute, in the sense of requiring some material threat to the business if the contact is not made. It must be enough that the manager making the contact believed that there was some good business reason for it.

“As to ‘reasonable’, that will no doubt be a function in particular of regularity, subject matter and seniority. 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 real justification, which are motivated by improper considerations such as bullying, discrimination or retaliation, or which are so numerous or trivial that no reasonable manager could have made them.

“The new guidance will also have to accommodate many other considerations, chief among them being that some employees will have no objection to out-of-hours contact and may see responding positively to it as a chance to advance their case for promotion or more money. The government 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.

“There is no doubt that this new measure has been easier to promise than it will be to deliver effectively. The potential for its implementation to be either over- or (worse) under-engineered is very considerable. We encourage all employers to look out for the intended government consultation on these measures and then to make their position on them loud and clear – above all, that if the new legislation is to work for anyone, employers must be certain as to where its boundaries lie."

Consultation essential

The CIPD says the Government’s proposed ‘right to switch off’ should be developed in consultation with employers and allow for some flexibility around when organisations can contact staff in unforeseen circumstances.

Ben Willmott, head of public policy at the CIPD, the professional body for HR and people development, says: “It’s important that any new ’right to switch off’ is introduced with sufficient flexibility to enable employers to contact employees outside normal working hours where unforeseen circumstances require this, for example due to sickness absence.

“It seems most likely the Government will introduce this new right through a code of practice, which should allow employers to develop approaches which work for both them and their staff. There will be different demands for this type of flexibility depending on the sector and the nature of people’s jobs, which would need to be recognised in the code of practice. Developed in the right way, in consultation with employers, such a code can help promote what is already adopted as good practice in many organisations and support workers’ work-life balance and wellbeing.

“Employers will need to ensure they have clear policies which are aligned to any new code, clarifying the circumstances where managers can and cannot contact staff outside their usual working hours.”

Working in balance

The proposed ‘right to switch off’ legislation by the new Labour government aims to create a fairer working environment by limiting out-of-hours contact between employers and employees. While the intention is to protect employees’ work-life balance, the implementation of such a law presents significant challenges due to the varied and evolving nature of modern working practices.

Drawing from international examples, it is clear that a one-size-fits-all approach may not be feasible. The success of this legislation will depend heavily on the development of a flexible and clear code of practice, created in consultation with employers and tailored to different sectors and job roles.

Ultimately, the goal is to balance the needs of businesses with the well-being of employees, ensuring that any out-of-hours contact is reasonable and necessary. Employers and HR departments must prepare for the potential changes by establishing clear policies and participating actively in the consultation process to shape a practical and effective framework.