A global trend toward hybrid/remote work has become the expectation for many employees. But 2024 saw debates evolve around productivity, leading some large employers to question how effective remote work is. A growing number of prominent U.S. employers have ended their hybrid and remote work policies, ordering employees to return to the office full-time, five days a week, with few exceptions.
Likewise, in-office working is on the rise in the Asia Pacific, according to a 2024 CBRE survey, with 36 percent of employers aiming for full-time in-office working. This perhaps shows why the pandemic hasn’t led to permanent changes to working patterns in China or Singapore, where staff are largely back in the office full-time.
Despite the backlash, remote working in all its forms can still offer companies distinct advantages. When the process is well executed, companies can save on office overheads, access a wider talent pool, reduce employee churn, and operate more efficiently. In 2023 in the EU alone, 22 percent of the workforce aged 15 to 64 were engaged in some form of telework, according to Eurostat, the statistical office of the EU. That figure is 51.9 percent in the Netherlands, 45.3 percent in Sweden, and around 42 percent in Iceland, Norway, and Finland. It’s also seen as a family-friendly issue. For this reason, the United Kingdom is making it easier for employees to change their working patterns, including by asking for remote working.
These flexible work models raise issues around workers’ rights, including health and safety implications for workers who are “always on.” The right to disconnect, which gives employees the right not to be contacted outside their normal working hours, has been a talking point for years. Various countries and regions have tried to address the issues, whether through legislation or guidance.
In April 2024 the European Commission launched a consultation of social partners (trade unions and employer representative bodies) on fair telework and the right to disconnect. It aims to gather views on fair practices, telework challenges, minimum standards, existing EU laws (such as the Working Time Directive and the Directive on Transparent and Predictable Working Conditions), and related areas. Such consultations often lead to negotiations between the social partners and agreement on legislative action, though the current state of play isn’t clear.
Soft rules and internal policies
In the absence of an EU-wide position, there’s a patchwork of local approaches. Spain has a theoretical right to disconnect under Organic Law 3/2018. It encourages companies to consult employee representatives on internal policies to agree a right to disconnect. Employees can switch off devices during rest breaks, paid leave, holidays, and so on. Law 10/2021 supplements this by regulating remote work. In practice, the obligation isn’t widely observed, and many companies haven’t implemented effective policies. Trade unions are discussing the possibility of a more formal right to disconnect, but there’s no widely observed legal right at the moment.
A stricter approach
Under its Labor Law, France grants employees a mandatory right to disconnect. It allows them not to respond to work calls, emails, and so on outside their normal working hours. Because the right interacts with working time rules, it must be strictly observed. To implement more flexible working time, companies have to comply with internal rules/collective agreements relating to the right to disconnect. Failure to comply puts a company’s approach to working time at risk and can result in significant financial indemnification. But there’s no new law.
An amendment to Mexico’s Federal Labor Law included remote work provisions and established a right to disconnect in 2021, as well as working from home allowances. Employers must not contact people outside their normal working hours if they work from home for 40 percent or more of their weekly time. It’s unclear how this right to disconnect interacts with overtime requirements, but this will continue to evolve in the coming year.
There are two types of overtime: up to nine hours a week, paid at double time under the Federal Labor Law (including more than three extra hours a day or more than three times a week), and time over that threshold, “excess time,” paid at triple time. Excess time can also trigger fines after an inspection, even though overtime payments are regulated.
A recent change to criminal legislation makes excess time criminal conduct regardless of the overtime pay provisions in the Federal Labor Law as it could be considered labor exploitation. It’s unclear if the offense relates to employers or those controlling workers (such as gangmasters). But there’s a risk of criminal liabilities – fines, penalties, and prison terms – for employers and directors if such conduct is proven in a criminal process.
Change may be on the way
Countries and regions that don’t yet have a right to disconnect are actively considering introducing one. It’s a hot topic in the United Kingdom. The government has said it will consult in due course, but there are no firm proposals. Any new protection would probably be through a code of practice, not a formal legal right. This reflects the approach in Ireland, which has a voluntary Code of Practice. This route encourages employers to discuss policies with employees or their representatives, while recognizing there may be situations that require out-of-hours contact. Failing to comply with the Code would not be actionable, but it could be relevant when deciding if an employer has breached workers’ rights on working hours or other matters.
No formal right, no new proposals
A legislative proposal that would have provided a right to disconnect in the Netherlands failed in 2023, as did a Right to Work From Anywhere proposal. The right to disconnect didn’t generate as much attention as the right to work from anywhere. Employers can introduce policies, though these would require works council agreement. Although it’s common to introduce policies on the right to work from home, it’s unusual for employers to introduce policies giving a formal right to disconnect.
In Germany, there’s no formal right to disconnect and no proposal to introduce one. The topic goes hand in hand with the definition of working time, regulated by the Work Hours Act, and whether employers are obliged to record daily working hours. Seeing the issue through a working time lens means requiring employees to work during what would otherwise be a statutory rest period would breach an employer’s working time obligations. There’s also a conflict between the statutory position – no obligation to record working time – and the position under case law: recording time is a matter of occupational safety. From a practical point of view, at least one decision has established that an employee can be required to check messages outside normal working hours in some cases, say, to check shift patterns, without breaching working time obligations.