Will the right to disconnect disrupt the way we work?

Despite the ongoing debate, the right is unlikely to cause significant disruption to our working world. It is likely to operate similarly to the existing right under the Fair Work Act that allows employees to refuse to work unreasonable additional hours – a right that has not previously been tested much in court, despite being a fundamental employment right.

It is far more likely to be leveraged in connection with other employment-related claims. An employee could claim they were dismissed because they tried to exercise the right to disconnect.

These types of claims are inexpensive to bring and can impose a significant burden on employers in defending, with a reverse ‘onus of proof’ applying that requires employers to demonstrate that any dismissal was not based on a prohibited reason (in this case, that a worker tried to reasonably switch off from work).

While the right to disconnect has stirred debate about its potential disruption to workplace flexibility, it’s unlikely to fundamentally alter the way we work.

What reasonable contact looks like in practice will vary across industries, jobs, and individual circumstances. In reality, it will likely not impact industries where additional hours of work are required and compensated for, or for shift workers and front-line workers in which being ‘on call’ is a necessity. And there may be less upheaval in professions or organisations in which out of hours contact is culturally normal and accepted by employees.

Alongside all of this, employees who want to get ahead likely won’t invoke the right, and those who do may find that managers gravitate towards workers who are more available.

Because of this, many employees may self-censor and avoid enforcing the right at all. But some will push back, so consideration will need to be given to what is reasonable contact is when setting business expectations, especially in organisations that work across multiple time zones.

While the right to disconnect has stirred debate about its potential disruption to workplace flexibility, it’s unlikely to fundamentally alter the way we work.

The right is aimed at ensuring employees are not punished for failing to respond to unreasonable after-hours communications, and if it does do this in practice, its implementation might just reinforce work-life balance more than it disrupts workplace flexibility.

Amanda Lyras is a workplace relations partner at Clayton Utz.