The Right to Disconnect
- Business Central
- Oct 22, 2024
- 3 min read
Updated: Nov 5, 2024
It is always interesting to watch the way laws are developed, usually fired by community or individual ideas about how the world, our communities, or workplaces should function. Thus, it should not surprise anyone in our modern world that someone thought it was a bright idea to legislate a right to disconnect.
‘Disconnect from what?’ you might ask.
It appears that the encroachment on our leisure time has also crept into the workplace to the extent that workers are almost naturally inclined to work outside of work hours, especially on their computers or cell phones, dealing with the myriad of emails that come through, after work hours.
The question becomes, should workers be expected to answer emails or even send their own emails outside of work hours?
This is not as crazy as it sounds, and it certainly garners frustrated reactions. The simple answer is, don’t do it. Don’t send or answer emails outside of work hours. We don’t need a law to tell us to do that, we should just use our common sense. Recently, the government brought in a ban on cellphone usage in classrooms, requiring schools to create policies about cell phone use in the classroom. It is equally arguable that we don’t need a law to tell our children not to use their phones during school hours, but in fact we do. So, it is never as simple as it appears.
Further, employment agreements that say a staff member’s salary pays for more than a 40-hour week starts to blur the boundaries around what is and what is not work time. It is highly probable that the nature of the workplaces this right would feature are workplaces that are desk and computer bound and, post Covid, working from home spaces as well.
The first country to introduce the right to disconnect was France in 2017, and the right spread to other European countries, and more recently to Australia. It has not reached New Zealand yet but our time is coming, much to the chagrin of some commentators.
In Australia, this new right to disconnect came into fruition for most employees on 26 August 2024, and for employees of small businesses, it will start on 26 August 2025.
The right to disconnect protects employees who refuse to monitor, read, or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. This includes contact, or attempted contact, from an employer, or another person, if the contact or attempted contact is work-related.
So, what qualifies as an unreasonable excuse? These are yet to be determined but the kind of factors to take into account when evaluating whether the excuse is unreasonable include the reason for the contact or attempted contact, how the contact or attempted contact is made, the level of disruption it causes the employee, the nature of the employee’s role, their level of responsibility, the employee’s personal circumstances, whether the employee is compensated or paid extra for remaining available to work when the contact or attempted contact is made, or, working additional time outside of their ordinary hours of work. There may be other factors to consider.
As we would expect, there are opportunities to resolve any disputes about what constitutes an unreasonable excuse either internally or using a government agency.
The types of remedies that are available include the following:
An employer can seek an order to stop the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact.
An employee can seek an order to stop the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.
An employee can seek an order to stop the employer from taking disciplinary or other action against the employee (if the employee’s refusal to monitor, read or respond to contact or attempted contact isn’t unreasonable).
The parties may need help to resolve the dispute in another way.
If the employee feels they have been adversely affected because of their right to disconnect (for example – by being dismissed or disciplined), they can apply to deal with a general protections dispute, if eligible.
We would probably expect something similar in New Zealand if we adopt this legislation ourselves.