The Countdown to Disconnect: Are You Ready for 26 August 2024?

On 26 August 2024, employees in businesses with 15 or more employees will have a “right to disconnect”. This right empowers employees to disengage from work-related communications from their employer or third-parties outside their working hours. For employers, this presents both a challenge and an opportunity to revisit out-of-hours expectations and foster a healthier work-life balance within their organisations.

The right to disconnect grants employees an enforceable right to refuse to monitor, read or respond to contact or attempted contact – be it via phone, email, text or messaging platforms – outside their working hours, unless such a refusal is unreasonable.

Importantly, this right does not prevent employers from contacting employees out-of-hours. For example, while it remains permissible to send emails to employees outside their usual working hours, the right to disconnect means employees are under no obligation to monitor or respond to those emails unless it would be unreasonable not to do so.

The challenge for employers lies in determining what qualifies as “reasonable” versus “unreasonable” contact.

Assessing whether a refusal to engage outside of working hours is unreasonable will depend on a variety of factors, including:

• The reason for the contact or attempted contact;
• The nature of the contact and the level of disruption it causes to the employee;
• The extent of compensation provided to the employee for being available or performing additional work outside of regular hours;
• The nature of the employee’s role and level of responsibility;
• The employee’s personal circumstances, including family or caregiving responsibilities.

Disputes over the reasonableness of out-of-hours contact should ideally be resolved internally, through open discussions between the employer and employee. However, if these discussions do not lead to a resolution, either party may seek intervention from the Fair Work Commission.

Employers may request an order to address an employee’s refusal to engage outside of working hours if it is deemed unreasonable. Conversely, employees may seek orders to prevent what they consider unreasonable contact from their employer outside their working hours. The Fair Work Commission will assess each case on its merits and may issue orders to address unreasonable refusals or contact as necessary.

As 26 August 2024 approaches, it is essential for employers to ensure their practices are in line with the right to disconnect. To prepare effectively, the following steps should be considered:

• Consider their Operational Requirements: Whilst many roles will not require out of hours contact with the employee performing it, some will. For example, an employer who operates nationally or internationally may have requirements that employees are contactable during business hours in time-zones other than that in which the employee is performing the work. Alternatively, where an employer operates continuous production, it may be necessary for employees on a preceding shift to be contactable to manage issues that carry over the shift change.
• Engage with Employees: Initiate conversations about working hours, expectations and how the right to disconnect will be implemented within your organisation. These discussions can help clarify what constitutes “reasonable” and “unreasonable” contact.
• Review Employment Contracts & Position Descriptions: Ensure these documents accurately reflect the requirements and expectations regarding contact outside of working hours.
• Update or Develop Policies: Revise or develop new policies which adequately deal with expectations regarding out-of-hours contact.
• Educate Managers: Ensure managers are educated on the nuances of the right to disconnect, including the difference between reasonable and unreasonable contact, to minimise the risk of adverse action claims.
• Manage Third-Party Expectations: Consider how to manage client, contractor, supplier and other third-party expectations in relation to out-of-hours contact. Adjust service delivery agreements or other external commitments, as necessary, to align with such expectations.

If you would like further guidance or advice regarding the impact of this new right on your organisation, we encourage you to speak with your Mapien consultant. Alternatively, please contact us and one of our Workplace Strategists will be in touch within 24 hours.