Welcome back to our “cross-border perspectives” series, where we compare employment law and practice from an international perspective, drawing on the experience of local and international employment lawyers who deal with these issues every day.

The third article in our series explores the UK Government’s proposal to introduce a new “right to switch off” in England, Scotland and Wales. We have compared this proposal with the current position in Germany to see what lessons we can learn from Continental Europe for UK employers.

To help us with this review, we have invited Philipp Schulte from Littler Germany to join us in a Q&A session on the right to switch off.

Background to the right to switch off (RTSO) – politics and the pandemic

Before we dive into the Q&A session, we wanted to briefly explain the context behind this proposal and what the RTSO currently means for the UK.

The UK Government’s proposal to introduce a RTSO was initially raised in its Plan to Make Work Pay during the 2024 General Election campaign. With this Plan, the Labour Party heralded the broadest sweep of proposed changes to employment law in decades. These proposals were formally codified on October 10, 2024 in the Employment Rights Bill.

In its Plan to Make Work Pay, the Labour Party explained that the COVID-19 pandemic had led to a “step change” in flexible and remote working practices; although it became easier for workers to fit work around family life following the pandemic, the lines separating the two became inadvertently blurred as a result. The Labour Party therefore proposed to introduce a RTSO to address the risk that workers would be constantly online in an increasingly remote working world.

Even though we already have some protections regarding employees’ working hours (primarily under the Working Time Regulations 1999 (the “WTR”), the current legal framework does not go far enough to meet the aims of this new UK Government, whose focus is to prioritise and strengthen employee rights as part of a broader policy shift towards a more employee-friendly working environment. The RTSO can therefore be described as an attempt by the UK Labour Government to fill this legislative gap by drawing a clear boundary between work and home life, so that “working from home does not become homes turning into 24/7 offices.”

Note: As employment law is devolved to the Northern Irish legislature, the UK Government’s employment law reforms will apply only to England, Scotland, and Wales. 

The legal aspects of the RTSO

What is the legal status of the RTSO in your jurisdiction (e.g., statute, code of practice, etc.)?

UK: Despite the wave of legal reforms included in the Employment Rights Bill, the RTSO is not one of them. Instead, the UK Government has chosen to take the RTSO forward as a statutory Code of Practice rather than as a new statutory “right to disconnect.” Generally, a failure to follow statutory Codes of Practice, such as those issued by the Advisory, Conciliation and Arbitration Service (Acas), would not in itself give rise to liability for an employer. However, they may well face adverse consequences for such a failure, particularly in proceedings before an Employment Tribunal, which we will discuss in more detail shortly.

Germany: By contrast, the RTSO is something that has already been widely discussed here in Germany, especially during the Covid pandemic and the broad introduction of working-from-home (WFH) arrangements. Yet, unlike in other European countries such as Belgium or Portugal, there is no specific statute governing the RTSO here. Employees do not need to be reachable by their employer outside of working hours (unless they are on call, of course) but there is also no outright ban on attempts by the employer to do so. Boundaries are, however, set by the German Working Time Act (Arbeitszeitgesetz) which contains general rules that employers must not deviate from, such as a maximum level of working time per day.  

What does (or would) the RTSO involve?

Germany: One noteworthy rule under the German Working Time Act is a mandatory, uninterrupted 11-hour rest break between each working day. Any action that constitutes work (even a 30-second check of emails on your phone!) is considered an interruption and the need for an 11-hour rest period would be reset. That is the black letter law. Needless to say, the reality for many employees looks very different, and employees generally cherish the flexibility to structure their day in a way that fits both their professional as well as their private needs. Yet, an employee who briefly checks their work emails at 10:30 p.m. at night must technically not start work before 9:30 a.m. the next morning.

UK: Interestingly, like the Arbeitszeitgesetz, our WTR also gives workers the right to 11 hours’ rest between working days, but we rarely see that enforced (if ever). A statutory Code of Practice on the RTSO, potentially issued by Acas, will likely be more detailed than the WTR– for example, we would expect it to require employers to agree to policies and practices regarding (i) expectations of normal working hours and (ii) when staff should expect to be contacted. This would be in line with Ireland’s current Code of Practice on the Right to Disconnect, which Labour referenced in its Plan to Make Work Pay as a model it might follow. For instance, the Irish Code of Practice assists employees who feel obligated to routinely work longer hours than those agreed in their employment contracts, while aiding employers to develop and implement procedures and policies to facilitate the Right to Disconnect. We can therefore expect a similar approach/purpose here.

What are the penalties for failure to comply? Are there any exceptions?

UK: The detail of the proposed Code of Practice and how it will be enforced is not yet clear and will likely be the subject of further consultation with stakeholders. That said, Employment Tribunals can currently take other Codes of Practice issued by Acas into account when determining liability and the level of compensation awarded to employees who bring a successful claim against their employer. For example, the Employment Tribunal can increase compensation by up to 25% in cases involving a failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. We would also expect the Code of Practice on the RTSO to contain some flexibility for employers, perhaps through certain exceptions, given that the Government wants to avoid adopting a blanket “one size fits all” approach towards this new right (as companies and roles vary from sector to sector).

Germany: In Germany, there are no individual remedies for employees (except perhaps refusing to work without having to fear retaliation). Rather, in terms of legal remedies, breaches (if detected during audits or if tipped off by employees/third parties) can lead to fines imposed by the authorities of up to 30,000 EUR per breach. If there are repeated breaches or if the employer endangers the employee’s health by breaching the law, this behaviour may even give rise to criminal charges for management (with one year’s imprisonment being the maximum sentence). So, time off the job should be taken seriously. Yet, there is no need for employers to panic. In practice, breaches are not widely pursued by the authorities. Also, there are of course exceptions to the 11-hour rest break rule, most prominently for hospitals and other institutions dedicated to the care of other people, as well as in the hospitality, gastronomy, transportation and agricultural sector (i.e., in areas of life where outside circumstances may make a strict 11-hour break impractical).

Were there (or will there be, in the UK’s case) any obstacles to introducing it?

Germany: Unlike the political/topical picture you painted in the introduction to this Q&A, a RTSO has long been established here in Germany and has been in place since long before remote work and WFH became hot topics. However, comprehensive duties to record the working time of all employees are potentially in the pipeline for Germany (see here) and, once these are introduced, it will be interesting to see how employees and employers alike adapt to the situation. This would need both a culture-shift as well as technical safeguards (e.g., remote access to company systems actually being blocked for rest breaks, password secured access etc.). Practically speaking, though, it would turn back time in terms of flexibility for both employees and employers who are used to flexible remote working.

UK: We anticipate that the business needs of employers will present the key obstacle to introducing a RTSO here in the UK. For some organisations, overtime may be considered acceptable, even necessary, to ensure the success of the business (especially for early-stage startups). Some industries, including the legal industry, may therefore require both a cultural and operational shift to cater to the RTSO and imposing such changes may well pose a challenge for many organisations.

The practical aspects of the RTSO

What are the advantages or disadvantages of implementing a RTSO for employers?

UK: The key advantage driving the UK Government’s proposal to introduce a RTSO is productivity. It recently confirmed that supporting growth is one of the Government’s central missions, and that it sees productivity as vital to growth. By introducing a RTSO, the Government believes that workers will remain motivated and productive, which would in theory benefit businesses in the long term. That said, finding a balance between working flexibly and asserting clear boundaries for when an employee can “switch off” is not simple in practice, and we expect many employers will be concerned about a potential reduction in both productivity and profitability levels, as well as incurring penalties and/or reputational damage if they fail to comply with the statutory Code of Practice on the RTSO. 

Germany: You are spot on. May I also add that I see an even larger disadvantage on the employee’s end: When it comes to balancing work, care for relatives and free time, a lot of employees actually value their flexibility. The RTSO does not necessarily make them work less, it just limits them in their ability to decide when they are doing their work.

What can UK employers learn from German employers if the RTSO were introduced here?

Germany: To be frank, the RTSO is not especially prominent in Germany at present and, given that it was established a relatively long time ago now, it hasn’t made the same topical “splash” as the RTSO proposal under the Employment Rights Bill. However, this is likely to change once the new German government proposes new working time rules. We would expect the new laws to include more comprehensive requirements for working time recording.

UK: We will be interested to see how this pans out, and whether the RTSO and its impact will look (dis)similar between our two jurisdictions. It will also be interesting to see whether all the talk and excitement about the RTSO in the UK translates into something concrete, which meaningfully changes employers’ approach to flexible working. Ultimately, if this does happen, then employers here will need to undertake a balancing exercise between the RTSO on the one hand, and the operational and commercial needs of their business on the other hand. This is no easy task, and it likely explains why the Government chose to take this non-legislative route rather than trying to incorporate the RTSO into the Employment Rights Bill.