Australia’s ‘softer’ right to disconnect a blueprint for UK

The right to disconnect didn’t make it into the Employment Rights Bill, nonetheless it does appear in the government’s policy paper ‘Next Steps To Make Work Pay’ with a  consultation planned for 2025 with legislation the year after. So how might it work in practice? Australia introduced the right to disconnect in August - we’ll speak to a Sydney based lawyer about what UK businesses can expect. 

The UK government’s current position on the right to disconnect proposes a statutory code designed to prevent employers from contacting employees outside working hours, except in emergencies. It’s a model that has been adopted by a number of EU countries including Belgium, France, and Portugal. An alternative more business-friendly model has been adopted by Ireland, similar to the one adopted in Australia. Their systems allow contact but they give employees the right to ignore it. The difference reflects broader choices: while some countries use legal restrictions to protect personal time, others prioritize flexibility, promoting awareness and respect for work-life boundaries without legally enforcing them.

Not surprisingly, UK businesses would prefer the second model. A number of business leaders and industry groups have expressed concerns that first model with its strict limitations could reduce flexibility and responsiveness, particularly for roles that sometimes require urgent communication after hours. The pros and cons of both models will be explored in next year’s consultation process and it will be interesting to see which way the government goes. 

In Australia, the right to disconnect for most employees came into force a few weeks ago on 26 August as part of the Fair Work Act amendments, as the BBC reported at the time. So let’s get an update on how it’s working in practice and what UK employers could learn if we end up with a similar model over here. Earlier I caught up with Sydney-based employment lawyer, Aaron Goonrey. First question – do employees have to actively choose to disconnect? 

Aaron Goonrey: “It's funny because it will really depend on the circumstances of each case. So everyone has a right to disconnect, every employee for whom the right to disconnect applies, which is the majority of employees in Australia, would have the ability to say I'm refusing to read an email, respond to an email, answer a phone call, respond to a text message, respond to a WhatsApp message, or some other social platform message that they receive from a work colleague, a boss, a client, a customer, a third party, stakeholder, a supplier. It's really to do with contact received from any person outside of someone's ordinary working hours.”

Joe Glavina: “Just moving on to the unreasonableness of the employee’s refusal. How has this gone down in Australia?”

Aaron Goonrey: “It's funny when you're speaking to clients, this was probably the number one item that they had as being of a concern in relation to how to manage their workplace and how to manage expectations as well because, ultimately, that's what this is about. It's about managing expectations. If someone refuses to respond to an email, or answer a phone call, how do you know that they're exercising their right? They don't have to do anything. The right is not one where they positively have to say I'm exercising my right. The right is where they're refusing to do something. So the only way you as an employer, or as a manager, know that they're refusing, or exercising their right to disconnect, is by them not doing something. But again, it also comes down to the expectations of what has been expressed to the employee, what the manager has said to the employee, in relation to whether you are required from time to time, for example, to respond to emails, to answer phone calls, to answer emergency phone calls. Something that's developed, particularly with sophisticated employers, is how they're expressing those expectations and what the rules of engagement are because many sophisticated employers will say, well, this is already part of our working life, this is already part of how we work flexibly, this right to disconnect. You don't have to answer phone calls outside of your ordinary working hours. You don't have to respond to emails outside your ordinary working hours. You should respond to these things when it suits you because, in some instances, many employers will work fully flexibly and so the responses to these out of work contacts - and that's another thing up for debate, what is out of work contact? What is outside of someone's ordinary hours of work when they work fully flexibly? So when you talk about expectations, I think that's where a lot of employers have gotten smart in Australia and they've explained to their employees, this is how we expect to engage with someone outside of their ordinary hours of work, or outside of our ordinary office hours.”

Joe Glavina: “Operationally, how has the new right affected the different parts of the employer’s business because, presumably, it will affect different parts in different ways.”

Aaron Goonrey: “Yes, and it will vary in terms of how it impacts. Some people will be business critical and may be required to be on call 24 hours a day, seven days a week. If you think about emergency services, or if you think about people who work across time zones, there may be a requirement already by way of their contract, by way of a policy, by way of a direction that's already been given to the employee, that from time to time there will be an amount of contact outside of the ordinary business hours that will be required and the expectation is that they are also required to respond to that contact as part of their ordinary duties. But for most people, it probably won't be a significant, or massive, shift in terms of you are required to respond to every email that you get outside of ordinary office hours. It’s simply expressing to employees, and expressing to managers, and for employers to understand this as well, that they really have to express what the expectations of the role are and why there are those expectations and, indeed, explaining as one of the factors, if they have been employed and are remunerated according to those expectations, as well.”

Joe Glavina: “Yes, just picking up on that last one, can an employee volunteer to waive their right to disconnect in return for more pay? So essentially the out of hours work is converted into overtime pay.”

Aaron Goonrey: “It's interesting, because I came across this today where it was posed that a group of employees, senior employees, may be expected to waive completely to the right to disconnect. The problem with that proposition is that if you had a waiver, if you had some type of release document where they were releasing the company from this right to disconnect, you can't contract out of a law, and it's a law that says that everyone has this right to disconnect. So when someone comes to you and says I want to get paid a higher duties allowance many employers are probably saying, and certainly from our experience they're already saying, you are already remunerated not only for your ordinary hours of work, but for any reasonable additional hours that you may work. Or it's an expectation of your role already that you may, from time to time, be required to be on call and, indeed, since the new law has come into place many employers have amended their contracts to say that from time to time you may be expected to respond to emails outside of your ordinary hours of work or to answer phone calls outside of your ordinary hours of work, because that is part of your role and that is one of the factors, as well, that would be judged in determining whether or not the right has been exercised in a way where someone can do it, and do it in a reasonable way.”

Joe Glavina: “Final point, Aaron. Is there anything for UK employers to fear if we end up with a similar version of the right to disconnect that you have in Australia?” 

Aaron Goonrey: “I don't think that there's anything that UK employers, or employers generally, should fear. I do know that right is not unique to Australia as well, it’s in other jurisdictions as well including, but not limited to, France and Spain albeit they're a little bit different. I think what we have in Australia is a different regime regarding this right to disconnect but I think ultimately it comes back to what I was saying before about expectations. If you can manage the expectations of employees regarding when they are required to work outside of their ordinary hours, or outside their ordinary business hours, that’s part of that balancing act because in in many sectors, in many professions, there is this creep of work going outside the ordinary span of business hours and into what some people would consider to be their personal time, their relaxation time, their time with their family and by virtue of, I suppose, technological evolution, many people are finding it difficult to switch off and this is part of the policy regime introducing this right to Australia to go everyone should have a right to say I need to disconnect from my work devices and from work communication. Some people may not exercise the right at all because they're quite comfortable to actually communicate outside of hours but it's also to make sure that people don't feel the need that with this creep outside their ordinary hours that they do have to respond. I don't think for UK employers that's necessarily something that should be shied away from but potentially something that they should embrace, particularly from a retention point of view and from an attraction of talent point of view. These types of things are definitely sales points that employers could use for the attraction of talent.”

The UK government’s proposals for a right to disconnect appear in policy paper ‘Next Steps To Make Work Pay’ which was published on 10 October. We’ve put a link to it in the transcript of this programme for you.


- Link to UK government’s ‘Next Steps To Make Work Pay’ policy paper