Joining the Global disconnect party – New ‘right’ needs employers to buy in

Co-authored by Samantha Thomas, Law Graduate

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Joining the Global disconnect party – New ‘right’ needs employers to buy in

Joining the Global disconnect party – New ‘right’ needs employers to buy in

Co-authored by Samantha Thomas, Law Graduate

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September 2, 2024

Right to disconnect Map

Australia’s new “right to disconnect” has made a big splash in the media this month. Employers have expressed concern; politicians have pledged to reverse it once in power while Unions have welcomed it as an essential measure. Observers could be forgiven for thinking that Australia was blazing a progressive trail, but in reality, we are late entrants to the global disconnect party as governments and workers across the world wrestle with the demands of the 24/7 digital age.

Our map, shows that at any point of time in a week day, somewhere in the world, workers are enjoying a right to disconnect. Much of the Americas, many EU countries and even outliers such as Kenya and Kazakhstan have taken measures over the last 10 years to give their workers the right to switch off after hours. Notable party poopers are the world’s first and second largest economies, the USA and China, although a “freedom to switch off” bill is currently before the legislative assembly of the state of California and many US companies have their own policies that apply to their employees.

However, the experience of the other countries with a ‘Right to Disconnect’ in place indicates that in Australia our new ‘right’ may not amount to very much, unless employers actively back the concept by putting in place measures to ensure their employees, not only understand it, but are comfortable exercising it.

Right versus reality

The global right to disconnect push reflects a growing consensus among policy makers that in an age of globalisation, when every worker has a well-equipped office in their smart phone, being able to ‘clock out’ has become a luxury. And there is evidence that not being able to do so has adverse consequences on workers’ health, wellbeing and (most importantly for many) productivity.

For example, in Ireland, a 2022 study by University College Dublin found that, although workers’ productivity increased when working from home, their stress levels also rose, and they found it more challenging to disconnect from work. The impact on women’s health was particularly stark with 43% of respondents reporting a deterioration in their mental health and well-being, compared with a third of men. More women than men reported that their physical health had deteriorated. (Geary and Belizon, 2022)

The research report Right to Disconnect: Implementation and impact at company level was published by Eurofound, the European Foundation for the Improvement of Living and Working Conditions in late 2023. The report looks at the implementation of the right to disconnect across nine EU countries which had introduced some measures to support a right to disconnect for their workers over the last decade.

Around 45% of respondents indicated that being contacted out of hours had negative implications for their work–life balance and health and well-being. A larger share of women indicated such issues (48% compared with 42% of men). The most negatively affected group was 25 to 39-year-olds and the most commonly reported health issue was headaches (41% of respondents), followed by backache (35%), overall fatigue (34%) and anxiety/stress (33%). The survey found that all these health issues were reported by a smaller share of workers in companies where a right to disconnect policy was present.

Implementation of right

These findings provide the first quantitative evidence of positive associations between company policies on the right to disconnect and work–life balance, health and well-being, and overall job satisfaction. Importantly, the report concluded that the presence of the ‘right’ alone was clearly insufficient and that laws and policies must be combined with awareness raising, effective implementation measures, ongoing joint monitoring and review by management and employee representatives, as well as measures to tackle the causes of over-connection.

The following actions were amount those implemented by employers to ensure the implementation of a right to disconnect:

raising awareness of the right itself;
providing training for managers on both the risk of constant connection and the benefits of disconnecting from work;
establishing an email/communication corridor outside which workers are not required to answer messages; and
providing training for employees on the risks of constant connection and the benefits of disconnecting from work.

These are the types of measures that should be implemented by employers in Australia who want to ensure that the right becomes a reality in their workplace. The findings show that making genuine efforts to implement the right to disconnect can result in a healthier and happier workforce, which is a reality that both employers and employees in Australia should celebrate together.

‘Right to Disconnect’ laws across international jurisdictions

Legal Measures


Jurisdiction	Title of Commencement	Relevant Instrument	Description of Laws
France	January 2017	Code du Travail of 2016 (Labour Code)	The Labour Code provides that, in the absence of any agreement with a union, an employer must set a company policy that includes provisions aimed at regulating the use of electronic communication. Specifically, in a telework situation, the employer must allow employees to exercise their right to disconnect. In practice, this may require employers to inform employees that there is no obligation for teleworkers to answer the phones etc. outside of work hours.
Italy	August 2017	Law No. 81 of 22 May 2017	The ‘Smart Working’ model accords employees with more flexibility and autonomy in the choice of spaces, times and tools to carry out their employment. Individual smart working agreements must specify the technical and organisational measures necessary to ensure digital disconnection and must identify rest periods.
Spain	December 2018	Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights	The legislation is broadly aimed at protecting workers’ health, guaranteeing rest time, leave and vacations, and protection of workers’ personal, family and work balance. The law provides that persons working remotely, and specifically teleworkers, have the “right to switch off devices” outside of their legal or conventionally established working hours.
Chile	2020	Law on teleworking Ordinario No. 1197	The right to disconnect is only applicable to employees who provide remote work and to telework employees who are excluded from working schedule limits. The legislation specifies that the right to disconnect should be for at least 12 continuous hours within a 24-hour period, and that disconnection time should be stipulated in the employment contract. Fines for violations of disconnection time apply, with the amount varying with respect to the company size and seriousness of the violation.
Mexico	January 2021	Amendment to the Federal Labor Law in the Official Gazette of the Federation	The right to disconnect applies only in the context of teleworking and not for on-site employees. Individual employment agreements must include details of working time and the right to disconnect, including from digital means of communications. Employers are also required to prepare a teleworking policy that includes the right. The laws do not provide detailed rules on enforcement nor do they define the precise parameters of the right; however, where an employer fails to provide evidence of compliance, they may be fined depending on the severity of the noncompliance.
Ukraine	February 2021	Labour Code of Ukraine No. 322-VII, Article 60-2, part 9	The right to disconnect applies primarily to employees who work remotely or at home. An employee working remotely is guaranteed a period of free time for rest, when the employee can refuse to respond to any information and telecommunication with the employer. The period of rest is to be determined in the employment agreement on remote work.
Slovak Republic	March 2021	Slovak Labour Code, amending Act No. 311/2001, section 52(10)	Amendments to the Labour Code now grant employees performing domestic work or telework the right to disconnect. Some exceptions may apply, such as where the employee has agreed to be on stand-by or to work overtime.
Argentina	April 2021	Law No. 27555	The law specifically provides the right to disconnect for remote workers. The laws establish that the limits on maximum hours of work remain in force for remote work, and that the employee has a right to disconnect outside of their work hours. Furthermore, employees with caring responsibilities may request compatible working hours, adjustments to their work schedule or an interruption of work to provide caring responsibilities. There are some exceptions where company activities are carried out in different time zones.
Italy	May 2021	Law No. 61 of 6 May 2021	The law expressly allows employees working remotely to disconnect from the company’s tools and systems used to carry out their work. This right is only recognised within the ‘Smart Working’ model and is not accompanied by any sanctions for non-compliance.
Ontario, Canada	December 2021	Working for Workers Act 2021, amended by the Employment Standards Act	The amended legislation requires employers with 25 or more employees to draft a right to disconnect policy between 1 January and 1 March each year. The term “disconnecting from work” is defined to mean not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, to be free from the performance of work. Notably, this is the only province in Canada that recognises the right to disconnect.
Portugal	January 2022	Law 83/2021, of 6 December 2021, amending the Teleworking Framework set forth in the Portuguese Labour Code	The law provides that employers have a general duty to refrain from contacting employees, regardless of the size or area of activity, outside of regular working hours. The employee can only be contacted by the employer in cases of force majeure. Failure to comply with this obligation may attract fines for serious misconduct.
Columbia	January 2022	Act 2191 of 2022	The law regulates the right to disconnect and defines disconnection as “the right of all workers and public servants to have no contact, by any means or tool, whether technological or not, for matters related to their field or work activity, at times outside the ordinary working day or maximum legal working day, or agreed, or during their holidays or breaks.” Accordingly, the employer must refrain from issuing orders or other requirements outside of the working day. Some exceptions apply to: employees who hold positions of direction, trust and management; employers who, due to the nature of their function, must have permanent availability; and situations of force majeure or fortuitous event.
Belgium	October 2022	Labour Deal (Act of 3 October 2022 on Various Labour Provisions), Chapter 8	The right to disconnect was first introduced into Belgian law in 2018, and has since been strengthened by new legislation passed in October 2022. Private-sector companies employing at least 20 employees must guarantee the right to disconnect for all categories of employees in a collective bargaining agreement or through their work rules. The provisions must prescribe practical arrangements relating to implementation; instructions for the use of digital tools to guarantee rest periods; and training and awareness-raising measures for employees on the risks of excessive connection. There are no specific sanctions for employees who have not yet implemented the right to disconnect.
Greece	December 2022	Presidential Decree no. 88/2022 (paragraph 10 article 123 of P.D. 88/2022)	The legislation requires teleworkers to completely abstain from providing work, especially from communicating by email or telephone, during non-working hours and holidays. It also prohibits discrimination against employees who exercise this right and requires a mandatory clause in employment contracts setting out the terms and conditions for ensuring digital disconnection.
Luxembourg	July 2023	Labour Code of Luxembourg, Articles L. 312-9 and L312-10	The law obliges companies with 15 or more employees to ensure the enforcement of the right to disconnect through a collective labour agreement or a subordinate agreement. The company must take into account its particular business and industry, as well as the practical arrangements and technical measures necessary to allow disconnection from digital tools. The company must also engage in awareness-raising and training measures relating to the right. This is intended to allow specific provisions to be adapted to the situation of each company. Failure to comply after 2026 may result in a fine between €251 and €24,000 depending on the severity of the offence.
Cyprus	November 2023	Law on Transparent Predictable Working Conditions (Law 25(I)/2023)	The law guarantees employees working remotely a right to disconnect from work-related communications outside of contracted hours. Failure to comply with the legislation carries a fine of up to €10,000, and obstructing the work of labour inspectors carries a prison sentence of up to six months and fine of up to €10,000.
Australia	August 2024	Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024	The new amendments to the Fair Work Act are aimed at protecting workers from unreasonable after-hours contact and restoring a healthy work-life balance. Eligible employees will have the right to refuse employer or third-party contact outside of working hours, unless the refusal is “unreasonable”. In determining whether a refusal is unreasonable, relevant factors may include: the reason for the contact; how the contact is made and how disruptive it is to the employee; how much the employee is paid; the employee’s role in the business and level of responsibility; and the employee’s personal circumstances, including family or caring responsibilities.
Kazakhstan		Labour Code of Kazakhstan	The Labour Code directly establishes the right of an employee to disconnect outside of working hours. An employer does not have the right to demand that an employee be available to communicate with the employer outside of working hours, except in cases of working overtime

Policy measures


Jurisdiction	Time of Commencement	Relevant Instrument	Description of Policies
Philippines	February 2017		The Department of Labour announced that nation’s workers may disregard work-related communications outside of office hours, and those choosing to do so should not be subject to disciplinary action. However, this has not been followed by any legislative or policy action.
Ireland	April 2021	Code of Practice for Employers and Employees on the Right to Disconnect	There are three related rights enshrined in the Code: the right of an employee to not have to routinely perform work outside of their working hours; the right to not be penalised for disconnecting; and the duty to respect another person’s right to disconnect. Specifically, the Code gives employees the right to not respond immediately to emails, telephone calls, or other messages out of normal working hours. The Code is not primary legislation and is therefore not legally binding on employers; however, can be used as evidence against employers in claims for breach of employment rights.

Current proposals


Jurisdiction	Time of Commencement	Relevant Instrument	Description of Proposal
Netherlands	July 2022		A Bill on the right to disconnect was submitted in July 2020 by a member of the Dutch labour Party and passed by the House of Representatives in June 2021. The Bill suggests that the current health and safety legislation be amended to include an obligation on employers to have discussions with their employees about online activity after working hours, and to make arrangements about not being reachable outside of working hours. The proposal would therefore keep agreements between the employer and its employees and allows for an individualised approach. The Bill is currently awaiting the opinion of the Council of State.
Kenya	November 2022	The Employment (Amendment) Bill 2022	The Kenyan Senate recently approved a Bill introducing the right to disconnect which is currently awaiting action before the Kenyan parliament. The Bill grants employees the right to disconnect outside of work hours and requires employers to establish a policy on when, or if, an employee must respond to the electronic communication. This includes the circumstances under which employers may contact employees outside of working hours and when the right may be waived in cases of emergencies.