As the U.K. considers legislation that would allow employees the right to switch off after work hours, HR leaders are grappling with how to balance flexibility with business needs.
By Simon Kent
In a recent social media post, Brewdog Co-founder James Watt and his fiancée Georgia Toffolo said that the idea of work-life balance was an invention by people who hated their job. However, the overwhelming evidence suggests that not being able to switch off from work, at least for the vast majority of employees, leads to stress and burnout. So much so that the U.K. government is actively eyeing legislation to give workers the right to switch off, preserving some part of the day from an otherwise 24-hour up time.
The legislation isn’t a new idea. France has the right to switch off, which cost Rentokil a fine of €60,000 when they breached the rules in 2022. Kelly Thomson, employment partner and ESG lead at law firm RPC, notes other countries have addressed the issue legislatively too. “In Australia, employers in breach of the right to disconnect risk litigation and hefty fines of up to $94,000,” she says. “In Belgium, while there are no specific sanctions for non-compliance, this could form part of a wider breach of workplace well-being obligations, which may result in criminal liability. In Ireland, a failure to comply with the code of practice on the right to disconnect will not amount to an offence but it may be admissible in any proceedings relating to the employee’s working hours.”
What’s interesting to note is the way that the right not to work—for want of a better phrase —may not form the basis of a case in itself, but be a contributory factor in others. “It’s likely that the route to enforce the right to switch off in the U.K. would form part of another substantive claim brought by the individual in the employment tribunal such as unfair dismissal,” explains Thomson, “which could result in a potential increase to any compensation awarded if that other substantive claim succeeds.”
“Truly flexible work ensures employees can work at times that suit them best, which is pivotal to retaining a diverse workforce.” – Fiona Saunders, Zensar Technologies
But is it ever possible to leave work behind? And more importantly, would a piece of legislation curtail circumstances where working outside usual hours is acceptable, even necessary? “While I understand the intent behind the legislation, I think its practicality depends largely on the nature of the work and the individual preferences of employees,” says Louis Perkins, people and culture manager at marketing agency Seed. “Some people thrive by working early or late, and for those individuals, a rigid restriction on communication could feel counterproductive.”
“The individuals that we hire have spent their formative years working hard to reach their position,” comments Jonathan Maude, managing partner of the London office of international law firm, Vedder Price. “They are committed to their roles and they are ambitious. They are not the kind of people that will willingly go offline at a critical moment.”
Maude goes on to note that if a lawyer is working on a time-sensitive transaction, they may not be able to switch off their phone or leave their colleagues to handle the matter in their stead. Although rather than grin and bear it, Maude says their practice has introduced a process that enables employees to get additional “work time” credited back as additional holiday or a day off to relax. “From an employer perspective, I actively encourage both lawyers and employees to ‘switch off’ and to take their holiday entitlement without taking work concerns with them,” says Maude.
Fiona Saunders, AVP and people head, U.K. and EU, at Zensar Technologies, says the importance of getting away from work completely is enshrined in their company’s “happiness framework,” which goes beyond the traditional employee survey to recognise employees’ desire to live a purposeful balanced, multi-dimensional life. “However,” she says, “truly flexible work ensures employees can work at times that suit them best which is pivotal for retaining a diverse workforce. Part of this will involve working out of hours if this reflects a time more convenient for employees.”
“Companies rarely fail due to a given email not coming in at 2 a.m., but they do suffer when employees burn out. We need to normalise the very simple expectation that when someone is away from the office, they actually are—not that they can be digitally roped back in at a moment’s notice.” – Mark Mortensen, INSEAD
At Zensar, there are clear systems and parameters around flexible work, allowing employees to track hours and make sure they don’t work excessive amounts. “This can also limit how much employees pick up communications out of hours,” says Saunders. Since this aspect of work is highly valued by employees, Saunders says businesses need to address the issue and find a solution even if the legislation does not materialise. “Those who fail to address this issue will struggle with retaining and attracting top talent,” she says.
And if legislation does come in, HR will need to ensure it is observed in the right way by the right people. “Without clear policies and proper training, even a well-meaning manager might inadvertently breach these new rules,” says Becky Wallace, head of people at LearnUpon. Wallace stresses the need for clear and thorough policies, communicated clearly across the business.
Compliance training may also be necessary, although Wallace adds that technology could play a role here. “By leveraging technology like an LMS, organisations can reduce human error, streamline processes, and build a safety net to ensure compliance with minimal disruption,” she says. “It’s a smart, scalable way to navigate the complexities of emerging work-life balance regulations while safeguarding against potential repercussions.”
The question remains as to whether legislation is really necessary in this area, given the positives that can be achieved by maintaining good flexible work practices and allowing employees to determine when and how they work.
“The issue is about perception and habit,” says Mark Mortensen, associate professor of organisational behaviour at INSEAD. “Companies rarely fail due to a given email not coming in at 2 a.m., but they do suffer when employees burn out. We need to normalise the very simple expectation that when someone is away from the office, they actually are—not that they can be digitally roped back in at a moment’s notice. That is not a blanket right to stop responding during the workday, only that ‘off’ means off. Obviously if there is a particular need for off-hours connectivity—a big deal, a critical deadline—these rules need to be flexible.”
This is, perhaps, the biggest problem about introducing legislation in this area. Too strict and there is little chance that the rules will do anything but compromise the flexibility and agility of the workforce. Too lax and it will do nothing for those employees who don’t have existing control over their working day and could be expected to work until they physically cannot do so.
Whatever happens, employers need to be clear with employees as to what being away from the office and communications all means. Employees need to understand that leadership recognises the value and importance of stepping back. “Ideally, leaders need to model that same behaviour,” says Mortensen. “Without leadership support, time away will become a point of contention and conjecture as to what happens when employees avail themselves of this right.”
