The right to disconnect – gunnercooke’s employment partners from the UK and Germany look at employer’s responsibilities in supporting employees’ work life balance.

November 22, 2021

Portugal has become one of the latest countries to introduce legislation around employer’s responsibilities and employee rights to disconnect. It has banned employer contact with employees outside contracted hours, except under exceptional circumstances. The government has also introduced anti-loneliness measures and expects home working expenses to be covered.

Several countries across Europe have introduced several legislative iterations, and the UK has growing cross-party support for employee rights to be strengthened in this area. Germany has taken a different approach, with large employers such as Volkswagen leading the way, introducing their own policies without relying on mandatory change enacted by government legislation. This post looks at the current rights for employees in both the UK and Germany, with best practice advice for organisations in each country.

gunnercooke UK Employment Partner Thalis Vlachos comments:

“The pandemic created a seismic shift in how people worked across the UK. With employees compelled to work from home, the place of work has often been no more than a desk in the corner of a room, the kitchen table or the sofa.

“But whilst this was a dramatic enforced change, it drew many more employee’s attention to how hard it is to achieve a work-life balance when work is an ever-present in your personal time and space.

“There is already a legal requirement for employers to operate within Working Time Regulations 1998, where employees are not permitted to work more than 48 hours a week unless they choose to opt-out.

“There is also a legal duty for employers to do whatever is reasonably practicable to protect the health, safety and welfare of their employees.

“Over recent years we’ve seen increased C-suite awareness and reflection around how overworking, stress and poor work-life balance can affect productivity, employee health and wellbeing, recruitment and retention.

“It’s not only been the pandemic and changing culture behind this shift. It’s also been driven by need.

“With costs rising, an increasingly tight labour market and an ever more dynamic jobs market, working conditions, and supporting work-life balance, is a key area of HR policy.

“Simply banning email access outside working hours is unlikely to be practical or desirable for many businesses and employees. Instead, forward-thinking businesses are already putting in place measures to ensure employees are empowered to achieve their work-life balance aspirations and have the mechanisms available to ‘switch off’ and protect their mental wellbeing.

“Co-designing these policies with employees and ensuring they fit within current legislative and best practice frameworks is key.

“With the UK government also currently undertaking a consultation around plans to make the right to request flexible working an option from day one of employment, it makes sound business sense for employers to continuously review and refine their policies to ensure they reflect legislative change and feedback from employees.

“Many organisations in Germany have followed this approach, taking action to meet the changing needs of their workforce without waiting for government legislation, as my Employment Partner colleague Karsten Umnuß explains below.”

Karsten Umnuß comments: “As with the UK, German employees must not work more than 48 hours per week under the Working Hours Act known as Arbeitszeitgesetz.

“Employees must have minimum rest breaks and daily and weekly rest periods, typically Sundays.

“We also have ‘Feierabend’, which refers both to the end of the working day and the act of switching off from work entirely.

“An 11-hour continuous break for employees is enshrined in law barring stringent exemptions for certain workforces and employee type.

“However, this requirement is not always followed as companies are only penalised if an employee complains that their rest periods are being intentionally interrupted.

“Many employers and employees alike feel that despite this legislation amounting to a ‘right to disconnect’, it doesn’t provide enough flexibility to meet modern lifestyle aspirations and working practices.

“Calls with colleagues in different time zones can be challenging, and the impact on personal care duties within working hours can also be difficult under current stringent laws.

“In Germany employers can be liable for criminal proceedings if employees can prove that interrupted statutory rest periods have made them physically or mentally unwell.

“To protect against this risk, many employers have taken action. Non-management employees at Volkswagen cannot access emails on their smartphones between 18:15 and 7am to prevent emails being sent outside working hours, whilst BMW, Bosch, Daimler and Siemens have established their own guidelines for employees.

“When government legislation is not keeping up with changing working practices and attitudes, it’s up to employers to do what they can to look after employees and give themselves a competitive edge in the labour market.”

If you have any specific concerns relating to your HR & working policies then contact Thalis Vlachos in the UK, here or Karsten Umnuß in our German practice here.