UK: The Labour Party's Proposals To Balance Work And Home Life - A Spotlight On The Right To Disconnect, Flexible Working And Caring Responsibilities

With a general election in the UK looming next year and Labour performing strongly in the polls, we're exploring what the employment law landscape might look like under a Keir Starmer-led Labour government by examining their wide-ranging proposals for reform. In this article, we consider Labour's proposals to introduce a right to disconnect and to support flexible working and caring responsibilities.

In 2021, Labour launched their Employment Rights Green Paper 'A new deal for working people' and committed to introducing new employment laws within the first 100 days of government. Many of the Green Paper's reform proposals were reflected more recently in a wide-ranging programme of provisional policies obtained by LabourList. Although the policies will need to be signed off by the party's national policy forum over the summer, they are likely to form the blueprint shaping the party's manifesto for the general election.

Included in these proposed reforms are commitments from the Labour Party to:

• introduce a new right to disconnect;
• introduce a day one right to flexible working; and
• reform aspects of existing family leave rights and protections.

Right to disconnect

What is driving the interest in a right to disconnect?

Over the past few years, the question of how we maintain a balance between home and work life has become increasingly debated, driven in part by the growing number of employees working remotely. While many have experienced the upsides to greater flexibility in how, where and when they work, regular home working can make it more difficult to "switch off" from work, with employees' evenings often being interrupted by calls and emails. We have also seen broader shifts, particularly among younger generations, in what people are demanding from their jobs – purpose, flexibility, autonomy and belonging are all becoming increasingly important to the workforce. James Davies, Partner at Lewis Silkin LLP, discussed these shifting expectations in his latest report for Lewis Silkin's Future of Work Hub, Eight drivers of change: 2022 and beyond.

The pandemic has also led to greater awareness of mental health at work and growing expectations on employers to do more to protect their employees' wellbeing. A report last year by the CIPD found that more than a third of employers had seen an increase in flexible working requests over the previous six months and that employees with flexible working arrangements are more satisfied than those without. This evolving landscape is reflected in Labour's proposals on the "right to disconnect".

Labour's Green Paper proposals commit to introducing a new "right to switch off". This would mean that workers had the right to disconnect from work outside of working hours and not be contacted by their employer. In an interview with the Financial Times, Angela Rayner, Deputy Leader of the Labour Party and Shadow Secretary for the Future of Work, confirmed that this right would likely form part of the party's manifesto for the next general election.

What is the current legal position on the right to disconnect in the UK?

In the UK there are a number of existing legal obligations relevant to this area, albeit they are arguably not particularly effective:

• Under the Working Time Regulations 1998 (WTR) in Great Britain, and equivalent legislation in Northern Ireland, employees are not permitted to work more than 48 hours a week on average (usually averaged over 17 weeks). Employees can choose to opt out of the 48-hour week, with employers in some industries encouraging their employees to opt out due to the nature of their roles. The WTR also entitles workers to daily and weekly rest periods, subject to certain exemptions.
• Under health and safety law (both legislation and implied duties of care), employers have a duty to protect the health, safety and welfare of their employees. They must do whatever is reasonably practicable to achieve this, which could include allowing their employees an effective break from work to avoid burnout. The bar for establishing a breach of these duties is set high, however, so this does not amount to a right to disconnect.
• In 2019, in a case brought by a Spanish trade union against Deutsche Bank, the European Court of Justice ruled that employers must keep a record of all working hours of the workforce each day. This left the legal position in the UK uncertain as it was unclear whether UK employers were impacted by the decision. However, a recent government consultation has confirmed plans to remove this uncertainty by changing legislation to clarify that employers do not have to record daily working hours of their workers, at least for the purposes of complying with the WTR.

Which countries have legislated for a right to disconnect?

Although the Green Paper does not set out Labour's plans in detail, Labour has indicated they will look towards other jurisdictions that have successfully implemented this legislation for guidance. We consider below some countries that have introduced a legal "right to disconnect" and the key features of each approach.

Since April 2021, Ireland has had a Code of Practice on the Right to Disconnect which aims to create a culture of good work-life balance and break bad habits where people feel obliged to respond to messages out of hours. The Code of Practice has meant that employers should ensure they are monitoring hours of work in a more visible and transparent way. Many employers have also introduced right to disconnect policies to help establish an organisational culture in which the line between work and leisure time is visibly respected and taken seriously. While the Code of Practice is not legally binding, it can be used as evidence against employers in claims for breach of employment rights. However, despite the anticipation in the lead up to its introduction, some recent industry surveys suggest that the measure has had little real impact on working practices generally. The Scottish government has committed to have "meaningful discussions" about providing its employees with this right.

It is clear that momentum is growing in this area and a number of suggested approaches for implementing the right to disconnect are emerging. For example, legislative frameworks requiring organisations to reach agreement with their workforce or a more prescriptive legislative approach setting out details of what the right to disconnect should look like in an organisation. A report by the thinktank Autonomy previously suggested amendments to the Employment Rights Act 1996 as a way of introducing this right in Great Britain. This sets out proposed draft legislation but, at a high level, this would involve (i) amending the legislation to create the new right; and (ii) enabling employees to bring a claim in the Employment Tribunal if they were subject to detrimental treatment by their employer because they did not work outside of their contracted hours. However, Labour has not yet confirmed its approach to introducing the right.

What are the challenges of introducing a right to disconnect?

The effectiveness of legislating for a right to disconnect is questionable. A right to disconnect is not the same as an obligation to disconnect. UK working time legislation has arguably had little impact on long working hours cultures, because employees opt out in many cases and are not necessarily willing to complain that a right has been breached.

Legislation may also have the effect of decreasing flexibility if it leads to rigid working hours - it is not clear that this is what workers would want. Parents with young children or others with caring responsibilities, for instance, might not appreciate the inflexibility of being told only to work certain hours and would prefer to take a hard stop at 5pm and log in again later in the evening. Being uncontactable during evenings and weekends may mean employees need to be "always on" during normal working hours, whereas many might favour greater flexibility and autonomy over their own working hours.

Finally, if employees are working with colleagues in other countries, rigid policies on communications outside of working hours could mean teams encounter barriers when it comes to working efficiently across time zones.

What would a right to disconnect mean for employers?

If Labour introduces a right to disconnect, we will have to wait and see exactly what the legislation entails. The most appropriate actions for employers to consider are likely to vary depending on the different businesses, workers and sectors involved. However, any new right will likely involve, at the very least, the introduction of policies on the right to disconnect, in which the line between work and leisure time is visibly respected and taken seriously. Employers are likely to be required to assess existing policies and procedures to ensure that any new law is complied with (for example, by increasing record keeping of working hours and training for managers). In light of this, employers could start to evaluate the impact by reviewing their working culture, including assessing how regularly employees work outside of their core hours, the number of (and reasons behind) flexible working requests made by the workforce and whether they have received any complaints or grievances in relation to extensive working hours.

Irrespective of legislative intervention in this area, employers may increasingly find themselves under pressure from their workforce to act. It is notable that several large German companies have already taken the initiative by introducing a right to disconnect in various forms. For example, E.on has declared that their employees do not have to check their smartphone or emails after work (although there is no specific agreement in this regard), Volkswagen has reportedly implemented a policy which means that email servers stop sending emails to employees' smartphones outside normal working hours and, BMW has put in place an agreement that allows employees to agree on fixed hours during which they are available.

Right to disconnect policies could be used to clarify expectations around working hours, suggest helpful working practices and explain how to raise concerns about out of hours contact. Employers will of course need to assess the pros and cons of adopting a policy. If employers are concerned about the impact that the "always on" culture could be having on their staff but don't want to implement a policy, they could consider softer intervention, including:

• Mental health awareness training in the workplace for employees of all levels of seniority, making sure that the training is updated and relevant to specific industry and business demands.
• Investigating what makes employees reluctant to disconnect and whether any specific interventions are needed – for example, to address an excessive workload or unhelpful behaviour from line managers.
• Looking at communication measures, such as email footers or subject headers saying that the message is not urgent or that a response today is not necessarily expected. While in some businesses this may not be the right message to appear on emails to clients, there are those who are distinguishing between internal and external communications. Some businesses have "buddy" systems to ensure appropriate levels of cover and are encouraging better use of calendars and communication of working patterns.
• Considering what time recording is appropriate. For many jobs, employers already have a considerable amount of data on working hours, but the challenge is how to use it in a way that complies with data protection requirements and is not regarded as overly intrusive by employees.
• Encouraging employees to take up their annual leave entitlement. Annual leave policies are an important tool for combatting employee burnout and it is important to check that employees are taking their leave and properly disconnecting from work.

The right to disconnect is a complex issue, and it's difficult to envisage how a "one size fits all" legislative approach might work in the UK, particularly given the desire for organisational and individual flexibility. Any new law would need to balance the rights of employees that want to disconnect outside of working hours against those who value the newfound flexibility that remote working has offered them, in particular working parents. Further, whilst it is important that employers acknowledge the significance of promoting a culture which allows employees to switch off without intrusion into family life, they will equally need to cater for the growing proportion of the workforce that are looking for more agile ways of working and greater autonomy. In order to succeed, employers will need to set clear (and realistic) expectations in relation to working hours, acknowledge the important role that line managers can play in promoting a healthy hours culture and view the "right to disconnect" as part of wider organisational change, rather than a standalone initiative.

Work-life balance

What are Labour's proposed reforms to flexible working?

Labour has pledged to give the right to flexible working to all workers from day one, with employers required to accommodate this "as far as is reasonable". Currently, employees in Great Britain have the legal right to make one flexible working request every 12 months once they have accrued 26 weeks' service. Their employer must decide the outcome of their request (including any appeal) within three months and can reject it if there is a business case for doing so (based on one or more of eight statutory grounds). In its 2019 manifesto the Conservative Party pledged to encourage flexible working and consult on making flexible working the default unless employers had good reasons not to. The government launched a consultation "Making flexible working the default" in September 2021. It published its response to this in December 2022 and confirmed it would make various legislative changes (including making flexible working a "day one" right). However, instead of introducing legislation, the government has backed a Private Member's Bill (Employment Relations (Flexible Working) Bill) which is currently awaiting Royal Assent. This should bring the right to request flexible working in Great Britain more in line with Labour's proposals. The Bill is also expected to result in a right to request flexible working from day one of employment, which will be introduced by way of secondary legislation once the Bill has passed.

Reform to family leave rights and protections

Labour's Green Paper also says that they will make the following reforms:

• Extend statutory maternity and paternity leave;
• End qualifying periods for parental leave;
• Introduce bereavement leave;
• Strengthen protections for pregnant women by making it unlawful to dismiss a woman who is pregnant for six months after her return to work (except in specific circumstances); and
• Reviewing the shared parental leave system, with reforms incentivising the sharing of leave.

There is currently little detail on Labour's plans, although these changes could have a significant impact on employers' operations and costs.

The pledge to offer additional protection for pregnant women for up to six months resonates with a Private Member's Bill that the government recently backed. Currently, those on maternity leave, shared parental leave or adoption leave have special protection in a redundancy situation. They have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. However, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 makes provision in Great Britain about protection from redundancy during pregnancy or after periods of maternity, adoption or shared parental leave. Although secondary legislation setting out the detail is awaited, the new right is expected to mean that redundant pregnant employees, and those who have returned from leave within the last six months, also have the right to suitable alternative employment if available. These new rights, which are not expected to come into force before April 2024, would have a material impact on restructuring exercises, as pregnant employees could be in a priority position for more than two years and searches for suitable alternative employment may need to stretch across group companies and a wide geographic area. Managers and HR would need guidance and (possibly) training, and companies would need a process for centralised monitoring of available roles. However, the extent to which the protection offered to pregnant women would extend under Labour's proposal is currently unclear.

Shared Parental Leave (SPL) was introduced in the UK in 2015 and allows parents to share statutory leave and pay on the birth of a child. We have written about this right in detail here. Whilst the aim of SPL was to improve equality by allowing both parents to take a more equal share of childcare it has been heavily criticised by some campaign groups. Uptake has been low and in June 2023 the Department for Business & Trade published a report which showed that, among eligible couples only 1% of employee mothers and 5% of employee fathers or partners took SPL following the birth or adoption of their child. In addition to social and cultural factors, this is thought, at least in part, to be down to the complexity of the scheme and the fact that, unlike maternity leave, many employers do not enhance Shared Parental Pay (leaving couples opting for this worse off financially). It's not clear exactly what Labour means when it says "reforms incentivising the sharing of leave" but it might consider introducing non-transferable parental leave for both parents. This "use it or lose it" type of leave could encourage more men to take time off. For example, both Sweden and Iceland offer non-transferable leave for fathers and have significantly higher levels of uptake. In June 2023, the government published a response to its consultation on reforming the family-related leave and pay system which confirmed it is not proposing to make any changes to the SPL.

More generally, larger employers have tended to move further from the statutory entitlements, choosing to offer (often materially) enhanced family leave benefits. This has been seen as critical in sectors experiencing talent and skills shortages, and offers an important point of difference helping them to attract and retain the best people. However, given the inflationary pressures and the cost of doing business, this is often a difficult balance to strike. A Labour government would need to be cautious about adding additional costs for businesses, in particular small businesses. Additionally, if Labour improves the statutory position, some employers' "enhanced" policies may start to look less generous in the wider market, potentially requiring them to review their existing packages so that they stay ahead of competitors.

The proposals outlined in this article are matters which are devolved to the Northern Ireland Assembly to legislate on. The current lack of a functioning Assembly and Government makes it impossible to predict with confidence what may happen in Northern Ireland. However, previous experience suggests that the status quo will likely remain, with the law in Northern Ireland being different in some respects to the law in Great Britain mentioned above. Nevertheless, even if the law doesn't change in Northern Ireland in the foreseeable future, bigger and progressive employers will likely want to keep an eye on these proposals, particularly if they offer enhanced family leave benefits (as mentioned above), or equivalent benefits to their employees based in Great Britain and Northern Ireland.

What steps will employers need to take?

There is a clear and deliberate intention by the Labour Party to make employment rights and employee welfare an important part of an election campaign and the current lack of detail means that employers should watch Labour's proposals carefully. Whilst some of the changes reflect things that had been expected in the long-awaited Employment Bill (and so businesses may be more ready for them) others are new, and businesses will need to prepare for these accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.