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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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!
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:
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.
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.