New laws are due to come into force in Portugal to ban employers from emailing or texting employees after hours, apart from in emergencies.
Although it doesn’t go so far as establishing a “right to disconnect”, it shows how employment law is evolving because of the pandemic. It also addresses a key problem with working from home and the difficulty, for some, of being able to switch off. Knowing there are no emails sitting in your inbox from your manager would certainly make it easier to avoid logging on in the evening.
It’s not just Portugal that is regulating homeworking. Other European countries have taken steps to give home workers additional protections. Austria and Slovakia introduced laws on working from home, and in Slovakia this included a right to disconnect (which gives employees the right not to be penalised for failing to respond). France introduced its right to disconnect in 2017.
The UK, on the other hand, has done little at Government level to introduce new legislation to regulate the longer-term aspect of pandemic related homeworking. Arguably it missed its chance, and could have included this in the recent consultation on flexible working. In Portugal, the additional energy and internet costs of working from home should be met by the employer, and regular meetings should be held to ensure that remote workers do not feel isolated. Fines will be imposed on companies that do not comply. Employees can work from home without seeking their employer’s permission if they are parents or carers of children under the age of eight and it is possible to do their jobs remotely.
That is a far cry from the modest changes proposed in the UK where the Government is deliberating over whether to remove the 26-week requirement before an employee can submit a request to work flexibly. It has already rejected the idea that we should move away from a “right to request” model to one where there is a “right to have” flexible working.
It seems highly unlikely that, in the UK, we would see legislation of the kind being introduced in Portugal. Many of the existing health and safety laws mean that employers are already required to consider issues around the impact of lone working and ensure that any equipment provided for homeworkers is safe and suitable for use.
The UK does not have any rules prohibiting employers from sending work emails out of hours. Technology and the pandemic has produced some negative outcomes, including the “always on” working culture. However, there are significant benefits too. The flexibility that facilitates homeworking can play a positive part in work-life balance. It’s not as simple as saying that all evening emails are a bad thing if, in fact, they give employees a choice as to when to work and structure their day.
Perhaps the answer is not in legislation but rather cultural approaches and good leadership. The Mindful Business Charter commits to respecting rest periods, and giving consideration to the need to switch off. Like many voluntary initiatives the difficulty lies in ensuring that good intentions consistently meet the reality of busy working lives.
It will be interesting to see whether international companies operating in Portugal apply these rules in other countries. Portugal is certainly looking at this with an international dimension. The regulations are designed to entice “digital nomads” to base themselves in Portugal. Earlier this year, the Portuguese island of Madeira developed its own “digital nomad village”, with free desk space and access to the internet. For those who are lucky enough to think about dashing off to the sunshine in Portugal for the perfect nine to five work-life balance, there is a spoiler here. Tax and employment law hurdles need to be addressed when UK employees work from overseas, and because of these complexities many employers prohibit employees from remote working abroad.
Eileen MacMahon is a senior associate at law firm CMS
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