With smart phones and devices becoming part of our daily lives, workplace boundaries have become blurred as more people access work emails and take phone calls outside the workplace.

In 2020 Hubspot reported that 35% of business professionals check email on a mobile device. The compulsion employees can feel to respond to emails and answer calls outside regular work hours is often referred to as the ‘digital leash’. Many employers and organisations have increased their use of technology because of COVID-19. Working from home and remotely has become part of the norm, and the digital leash is continuing to extend even further.

In Victoria, the newly negotiated Victoria Police Enterprise Agreement 2019 includes a ‘right to disconnect’ clause for police officers. This means that managers must respect leave and rest days and avoid contacting employees outside work hours unless there is a genuine emergency or welfare matter. This radical development has received a lot of media attention, and aims to shift the ‘always on’ culture so that officers can switch off after their shift. Under the clause, police officers can legally refuse to respond to, or engage with, any after-hours contact by Victoria Police unless they receive an ‘availability allowance’, payable for every hour the employee is off duty but able to be contacted.

Does Australia need a ‘right to disconnect’?

For some workforces, the ‘digital leash’ allows employees more flexibility so they can complete their work outside normal working hours. This allows a balance to be achieved with family responsibilities that impact their ability to be in the office for the standard workday. However, this does not mean employees have to work longer hours. It just means they have more flexibility around the timing of their regular work hours.

With the freedom and flexibility that technology provides comes a risk to employers as they do not have access to the extended ‘workplace’ at home. This could result in workers compensation issues if an injury occurs while working remotely. The ‘digital leash’ also leads to concerns about mental health. The inability of an employee to fully switch off from work can lead to burn out if employees are working additional hours at home and away from the office, as well as the standard workday.

The ‘right to disconnect’ is a concept which was formalised for employers in France. In 2017 the ‘El Khomri’ law was enacted that obliged companies with more than 50 staff to decide with staff about the times they can and cannot contact them outside office hours. If agreement cannot be reached, then the employer must create guidelines that specify expectations of employees and their rights outside work. There can be penalties for non-compliance by employers, and employees cannot be treated adversely if they do not respond to emails outside work hours.

In Australia, while there is no legislated ‘right to disconnect’, there are protections in the Fair Work Act, and National Employment Standards, which sets a 38-hour full-time working week and provides for overtime and penalty rates for most industries. If an employee is treated adversely due to a refusal to work excessive hours or outside their contracted work hours, they would likely be covered by the general protections provisions of the Fair Work Act. This prevents an employer from treating an employee adversely because they have exercised a workplace right.

For many employers, implementing a ‘right to disconnect’ is not the solution. Employers can, however, establish strategies to utilise technology to the advantage of the workplace without intruding on the right of employees to have a life outside work. These can include:

  • communicating clear expectations about work hours and requirements, and promoting a culture where employees are expected to switch off outside work hours
  • negotiating specific arrangements for those employees who wish to perform some of their work hours at home rather than in the office, and/or outside standard business hours
  • monitoring workloads, particularly for those employees who request to work some or all their hours remotely.

This issue is not going away anytime soon as technology continues to have an increasing role the way we work. It is important for all employers to proactively communicate with their staff  to balance utilising technology and looking after staff wellbeing.

How can we help?

Should you have any questions regarding the issues raised in this article, as an employer or an employee, please do not hesitate to contact our Employment Law team on 02 6285 8000 or by email.