Right To Switch Off: Planned New Code Of Practice
Could the impending new ‘right to switch off’ be watered down? Employers sincerely hope so – especially after the government’s pre-election business charm offensive (and subsequent further reassurances after hiring stalled).
The proposed right to switch off would involve a code of practice stipulating when staff should not be contacted outside office hours. Rules in Belgium and Ireland are said to have been the inspiration.
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How Would A Right To Switch Off Be Applied?
Legislation is still awaited. And it’s due by mid-October if the government is to keep its 100-day promise that the unions have already declared a red line.
Could breaching a right to switch off trigger an employment tribunal? Probably not, suggests current speculation within legal circles. But it could be an aggravating factor that could lead to higher penalties for employers that have breached other rules.
Key to this school of thought is that the right to switch off would be a code of practice. And under current Acas guidelines, compensation could be increased by 25% if an employer failed to follow existing codes of practice.
If the right to switch off were similar to existing rules in other countries, it could be a relevant factor in cases of unfair dismissal.
That does not bode well – especially given the inherent difficulties of dealing with employees working abroad in different time zones.
Even a simple one-hour time difference – such as the UK vs mainland Europe – could result in an employee receiving a phone call in the middle of dinner or breakfast (depending on the direction of the call).
So imagine the chaos the new legislation would cause when you tried to contact colleagues in New Zealand or Alaska!
Other Proposed New Employment Rights
Some of the biggest proposals include curtailing the controversial practice of ‘fire and rehire/replace’.
This typically involves making staff redundant then either re-employing them on less favourable contracts or replacing them with cheaper workers.
As a law firm, we made our views on these abhorrent practices very clear in this blog post from February 2023.
Other government proposals include:
- Banning “exploitative” zero hours contracts.
- Day one rights for unfair dismissal (though potentially with a probation period), sick pay and parental leave.
- Extending the time limit for bringing employment tribunal claims from three to six months.
- A single enforcement body (‘Fair Work Agency’) on worker rights. This body would include trade union and TUC representation.
- Pay gap reporting for ‘large’ employers.
- Stopping the use of outsourcing to avoid having to provide equal pay.
- Strengthening TUPE rights.
- Updating whistleblower protection for women who report sexual harassment at work.
- Making flexible working a default with the right to request it from day one (except where it isn’t reasonably feasible). This could be a medium-term policy.
- Consulting on whether carer’s leave should be paid (medium-term policy).
- Making it unlawful to dismiss pregnant workers for six months after their return to work, except in certain circumstances (medium-term policy).
- Removing the lower earnings limit for Statutory Sick Pay (SSP).
- Repealing curbs on unions, such as the requirement that 40% of those entitled to vote on recognition need to vote in a ballot for it to be considered valid.
- Ensuring that outsourced workers are included in gender pay gap reporting.
- Compelling employers with more than 250 staff to have a menopause action plan.
- Reforming tipping – to ensure that workers receive their tips in full.
- Ensuring that employers consult with unions or elected staff representatives before introducing surveillance at work.
- Amending collective redundancy consultation so it reflects all those impacted throughout the business, not just in one location.
- Creating a single status of worker. The current system has three tiers: employees, other workers and the self-employed.
Rather a long list isn’t it? It’s one that would be fraught with pitfalls for employers. Simply getting the paperwork correct would be extremely onerous.
And as many employers know to their cost, a simple procedural error may be all it takes to undermine their case at an employment tribunal. So it’s crucial to get legal advice from a solicitor with extensive experience of employment law.
Meanwhile, there’ll be the usual round of consultations before any of the proposals outlined above go before Parliament. However, expect that process to be quick because of the government’s promise to the unions.
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For further information, contact Coles Miller Solicitor Hugh Reid. He is a member of the Employment Lawyers Association (ELA), the voice of authority in this complex area of the law. Hugh qualified as a solicitor in April 2006, and has been specialising in employment law since September 2008.
Before qualifying as a solicitor, Hugh worked in the legal department at Surrey Police HQ, where he dealt exclusively with employment law matters.
His areas of expertise include maternity/paternity rights, discrimination claims, redundancy, TUPE, holiday entitlement, employment contracts, wrongful dismissal, settlement agreements, ill-health absences and dismissals, restrictive covenants, equal pay claims, disciplinary and grievance procedures and data protection issues.
Hugh is based at Coles Miller’s Poole office.
* This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Hugh Reid at Coles Miller Solicitors LLP.
