Labour made a manifesto pledge to “bring in the ‘right to switch off’” in their ‘Make Work Pay’ paper that we’ve been off talking to clients about since the change in government was known. So how might this operate in practice?

Well the government is considering an approach whereby a Code of Practice on the right to switch off is introduced (most likely published by Acas), similar to the position in Ireland. Failure to follow this code would not provide a free-standing right to bring a claim in the employment tribunal. However, any failure to follow it could be taken into account when deciding the level of compensation to be awarded in other tribunal claims. This would be similar to the Acas Code of Practice on Disciplinary and Grievance Procedures where an unreasonable failure to follow it can give rise to an uplift in compensation of up to 25%.

It is not yet clear whether the focus of the uplift will be breaches of the proposed Code of Practice or of any internal policy put in place by the employer in light of it. The press have reported that the penalty would apply “if companies are shown to repeatedly breach agreements on out-of-hours working”.

Government sources have reportedly said that any new "policy" will be specific to individual workplaces most likely with an onus on employers to agree contact hours with workers as is currently the position in Belgium, with ministers aware of the potentially disproportionate impact on smaller businesses.

It is unclear how a new Code of Practice will be drafted in a way that will have meaningful impact and work for a range of workplaces, or even if a Code of Practice will be the government's preferred means of implementation. Further information, and a likely consultation, is awaited with a government source stating that it has “not settled on a position yet”. 

As always, the CG Employment team can help you prepare for these potential changes, feel free to contact one of the team if you require further guidance.