What is the proposed “Right to Switch Off” likely to mean for lawyers? And can it ever really work for high-flying professionals? The Brief investigates.

One of the more widely trailed elements of the Government’s planned workers rights package is a proposed “Right to Switch Off”, a policy that aims to reduce the pressure on workers to be contactable outside their normal working hours.

In places like Spain and France prescriptive “right to disconnect” regulations have been introduced (in the latter country, anecdotally, these regulations are accorded the same respect as no-smoking signs). The UK’s legislation is likely, however, to take the form of a flexible code of practice.

According to Beren Maddison, staff engagement and wellbeing partner at The University of Law, “The proposals currently align with existing practice in Ireland and Belgium, which are enacted through a code of practice in which employers must enter into workplace agreements with their employees around contact hours and the right to switch off.”

There are, he continues, three main principles underlying these pieces of legislation:

The right to not work outside of operational hours on a regular basis.
The right to not be penalised for refusing to complete tasks outside of these hours.
A duty to respect other employees’ right to switch off, by not contacting them via phone or email.

This will throw up some obvious difficulties in the case of law firms. The classic corporate scenario, involving teams working all hours to complete deals is one.

Immediate action

This is acknowledged by Neil Wilson, Managing Partner at Chadwick Lawrence, a leading West Yorkshire-based law firm recognised for its progressive approach and commitment to employee wellbeing.

He says, “There are many disciplines where complex and urgent legal matters can wait until conventional office hours. There are, however, occasions where immediate action is required which might happen outside of conventional hours.

At Chadwick Lawrence our policy is transparent about this; we explain to colleagues that we support the right to switch off but ask them to accept that, from time to time, we may need to override this, and our colleagues are very happy with this stance.

Jonathan Maude, managing partner of the international law firm Vedder Price, takes a similar but more robust view when it comes to ambitious lawyers working for leading corporate firms.

He says, “The London office of a US law firm is essentially a client service business catering to global companies many of whom are undertaking time sensitive transactions.

The reality is that any associate-level lawyer or more senior is on the front line with these clients making it unfeasible to completely disconnect from work at 5.30pm or go ‘offline’ on holiday for a couple of weeks.

"More junior lawyers and other employees that are not responsible for, or actively involved in ongoing deals, can disconnect from work far more easily.

“That said, from an employer perspective, I actively encourage both lawyers and employees to ‘switch-off’ and to take their holiday entitlement without taking work concerns with them. However, that’s not always possible.

“If a lawyer is working on a time sensitive transaction, they won’t be able to switch-off their phones, head to the beach and leave their colleagues to handle matters in their stead. When lawyers find themselves in that position, we have introduced a process that enables them to get that time credited back, to take additional holiday or take a day off to relax.”

Do not disturb

In firms like Chadwick Lawrence, however, lawyers are encouraged to turn off their work email accounts on their mobile phones outside of work hours.

“Our telephone system also sits on their mobile phone, and they are encouraged to place this on ‘do not disturb’,” Wilson says. “If they communicate by other means, WhatsApp for example, they are encouraged to mute notifications.”

While it is generally acknowledged that senior staff may need to send emails out of hours, and that flexible working means colleagues’ normal working hours may not coincide, good practice now is to include a note saying that replies are not expected outside the recipients usual working hours.

Power imbalance

However, according to Liam Entwistle, employment law specialist at Scottish firm Wright, Johnston and Mackenzie, this might not be enough. He says, “This ignores the question of a power imbalance.

“What is the perceived expectation of junior solicitors if a senior workaholic team member is firing out emails at 11pm? If, however, there has been a clear dialogue by that person, making it clear that there is no expectation to read or reply, then that’s another matter.”

Maddison believes, however, that no amount of caveats can counteract the example set by sending emails in the middle of the night. He says, “Even in the most collaborative and non-hierarchical workplaces, employees will still want to impress their seniors and will often look to them as role models of expected behaviour.

Even something as simple as a senior colleague sending an email outside of working hours can communicate that out-of-hours work is encouraged or expected, even if this is not the intention.

“This does not mean that senior employees cannot work outside of conventional working hours, but it may be more appropriate to focus on tasks that do not require communication with other employees. Where communication is a significant part of a role, it may be useful to draft emails in preparation for them to be sent during work hours, or to utilise the schedule send function to support this.”

Client contact

It is one thing to implement a policy relating to internal communications but quite another when it comes to clients. While in some disciplines it will be possible to limit client contact to one’s usual working hours, this will often prove difficult with clients based in different time zones.

It will also often be impossible in criminal defence, where clients might be unwilling or unable to make calls to their solicitor during their own working hours. Similarly, immigration lawyers who are “disconnected” when the Home Office attempts to deport their clients on a Sunday, necessitating an immediate injunction, might find themselves in hot water.

Switching off

Even with phones switched to silent and emails disabled, “switching off” might not come easily to lawyers dealing with complex or high-stakes cases.

It can be even harder, ironically, for lawyers who work from home. Rob McKellar, director of legal and general counsel at the HR, employment law and health & safety consultancy, Peninsula, says, “There have been several studies and reports that have concluded working from home can have a detrimental impact on the ability for individuals to switch off.

For example, the Royal Society for Public Health in 2021 found that 56 per cent of employees working from home found it harder to switch off.

“When you think about it, this isn’t surprising, after a busy day, individuals may find themselves trying to unwind in the same room that they have been working in all day. Having that instant easy access to their laptop or desk, may make it harder for individuals to resist the urge to ‘just do this one task’.”

Having a dedicated workspace, ideally a separate room, at home can help in these circumstances. However, this is not always possible, in which case Entwistle recommends “squaring off” your workspace. At the very least, your laptop should be closed down.

However, since time immemorial pressurised professionals have been “taking their work home with them” and lying awake at night thinking about the matters on which they are engaged.

Maddison has a tip for these circumstances – one which applies at all levels of seniority. He says, “Utilising time management and workload prioritisation techniques is an effective way of managing heavy workloads and communicating realistic deadlines to your stakeholders.

When managing your workload, your aim is to ensure that you can ‘close off’ or ‘roll over’ outstanding tasks at the end of each day, so that you aren’t thinking about them outside of work.

“Taking a proactive approach to managing your wellbeing is also a useful way to switch off from work. Participating in activities and hobbies such as exercise, mindfulness, relaxation, volunteering, social and community events, and time with family and friends can all improve your wellbeing while also providing meaningful and rewarding time away from work.”