We all need to be able to switch off from work and have the control we seek between work and the rest of life. So a “right to disconnect” might seem a great way to guarantee maintaining the boundaries, at a time when much work can in principle be anywhere, anytime.
But is having a one-size-fits-all law the best way to achieve this?
A succession of countries is implementing a legal “right to disconnect” from work communications “after working hours”. Australia has just done it, and the UK says it will be next.
This is all well-intentioned, for sure, but does it genuinely support flexibility, or treat flexibility as a problem to be solved by infantilising the workforce and creating a superstructure of bureaucracy in place of meaningful workplace innovation, and suffocate employee autonomy in the process?
Advocates for such legislation start from the point of view of workers’ rights, and of protecting people from an unwanted intrusion of work into home life with potential impacts on stress and mental health. There are concerns that imbalances in power relationships lead to both exploitation and the development of an ‘always on culture’.
What can be wrong in protecting people from this these?
The unintended consequences of well-meaning regulation
As an advocate of flexibility for more than 30 years, it might seem strange to be sceptical of a law that is heartily supported by many other advocates of flexible working. But here are some factors worth thinking about when considering a right to disconnect:
- The focus on time, rather than results. The flip side of an enforceable law about “out-of-hours” contact is the good ol’ punch-clock, like in the old days at the factory gates. And we’re seeing a whole new cascade of time-tracking software come on stream. This is swinging the pendulum away from the dynamic flexibility of the Smart Working we always advocate on Flexibility.co.uk.
- An implicit expectation of set working times. What exactly are your working hours when you have, or aspire to, the flexibility to define your own schedule, and in some cases to the freedom to vary it as needed? There’s an old-school mindset at work here, embedded in the legislation, that envisages a common set of default hours. Microsoft Outlook has this embedded too, by the way, with its old-school reminders about communicating within working hours. And in a large organisation that facilitates employee choice and autonomy, and/or works across time zones, what “working hours” are will be an extremely moveable feast.
It’s how employers respond to the legislation that will undermine the good intentions involved.
- The mindset that flexibility is problematic, and people need protecting from it. This has been a constant theme identifiable in some research, especially in sociology and gender studies. But even where some aspects of ‘work-life conflict’ are identified, the vast majority of people feel flexibility is beneficial overall. Policymakers should be wary about blanket legislation that creates new obligations for organisations when other measures can work better and in a more nuanced way to cater to different circumstances. It’s how employers respond to the legislation that will undermine the good intentions involved.
- Organisations responding with heavy-handed policies or agreements that in effect curtail flexibility. It’s pretty much inevitable that HR departments will create policies and procedures for compliance and the avoidance of contentious situations. This compliance, and subsequent decisions by tribunals and other bodies that interpret the law, will almost inevitably set up bureaucratic processes that take precedence over both work requirements and personal or team preferences for working patterns.
- Worst of all – employers switch off communications and remote access for their employees at set times. This essentially removes or drastically limits the time-flexibility that surveys always show most workers aspire to, while damaging productivity in the process. This is more common than you might expect in countries that have adopted this kind of legislation, as this Eurofound study found: “Employees observed that the most common actions taken to support disconnection from work-related digital tools are automatic deletion of emails received during holidays and measures to prevent the delivery of work emails during certain times.”
Why do they do this? Basically, out of fear of litigation, when unwanted contact might be cited as additional proof of bullying or harassment. Statements about this being for the mental health of employees and an improved work-life balance should be taken for what they are: paternalistic “flexwashing”!
A better and more flexible way
I have a tendency to be averse to state intervention in how companies are run and how working lives are organised, when there are alternative and less onerous ways to deal with an issue.
And I’m very averse to the “this flexibility is great, let’s nail it down” tendency we often see in some quarters.
Flexibility is about, well flexibility! And in its more mature form, Smart Working, it’s about creating the conditions for a dynamic flexibility that responds to the needs of the business, its customers, teams, individuals and beyond.
It recognises that there is no one-size-fits-all, and adapts to the needs of different kinds of work and of different individuals.
There are multiple circumstances where there may be a need to communicate with people at unexpected times. For example:
- Dealing with an unexpected snag in a project.
- Preparing a pitch to a tight deadline.
- Rectifying work that has come in from a colleague or partner seriously substandard for a customer (or for a pitch), and needing to deal with it urgently – believe me, I’ve been there more than once and it’s needed all hands on deck to put it right!
- Helping people to swap shifts to deal with an unexpected absence or one person’s family crisis, by contacting someone who wasn’t expecting to be contacted.
Supporters of the legislation argue that it’s possible in the context of the legislation to have agreed processes to deal with these types of situations. It doesn’t forbid the attempt to communicate, just that people have the right not to respond*.
If it’s true we can have processes to deal with legitimate “out of hours” communication – then why do we need a law and all the inevitable internal and external bureaucracy that comes with it?
The “why” of the legislation essentially boils down to:
- Protection from overworking and apparent work intensification
- Respect for the boundaries of private life.
These can be achieved by having clear principles about how flexible or smart working works, and team agreements about normal expectations for interaction and the circumstances where exceptions may occur. These should be supported by training and communicaitons, and embedding better practice for smarter working in management training.
It’s not rocket science, and many organisations have been doing this successfully for many years.
We should seek approaches that centre on goodwill and mature conversation, with the workforce treated as mature adults who can make their own decisions, in discussion with their teams, about how, when, and where to work.
There will be bosses who do cross the line in pressuring employees, both during working hours and beyond. In the end, employees will vote with their feet and seek employment elsewhere.
For the majority, we should seek approaches that centre on goodwill and mature conversation, with the workforce treated as mature adults who can make their own decisions, in discussion with their teams, about how, when, and where to work.
We should also note – the legislation deals with digital communications. It doesn’t deal with the fundamental reasons that lie behind people overworking. These are primarily: unrealistic workloads, poor management practices and toxic cultures that see excess working as signs of virtue. People in workplaces where these are the norm will still work around the clock, even if the law gives them the right not to respond to the latest email.
Those fundamental problems cannot be easily tackled by legislation. They need to be tackled by rethinking everything about how work works in an organisation, combining a focus on wellbeing with a focus on real productivity – in a nutshell, by adopting a thoroughgoing approach to Smart Working.
*(Note: that’s not the case in Portugal, where the law sets an obligation on employers not to make contact out of hours.)
