Teleworking, Work Life Balance and The Right To Disconnect: Can Current And Emerging Law Adequately Protect Teleworkers?

Telework can increase flexibility and autonomy and enhance work life balance. It made it possible for workers to continue to work from home during the pandemic and this ability may prove valuable in the face of climate change disasters such as extreme weather events. However, telework also has disadvantages; it can result in overwork and blurring of boundaries between work and private life with associated detriment to work life balance, and wellbeing. This is compounded by new technologies which extend the possibilities of employer surveillance to all aspects of employees' lives both during and outside of working hours. This paper identifies some common themes in the emergent body of law which establishes a "right to disconnect" and considers them through a human rights lens which prioritises respect and protection of human dignity. It notes that, while there are variants in how the right to disconnect is regulated, commonly: the right is not universal; the law only require employers to have a policy with no specific requirements as to what this policy should contain; often there is a requirement for consultation with worker representatives to establish the content of policy but not always; frequently there is a lack of enforcement of the right and an absence of penalties for contraventions of the right. It is argued that these laws, as currently imagined, do not go far enough in terms of adequately protecting teleworkers right to a private life and to human dignity. It is concluded that improvements in the areas of scope, consultation, and enforcement of the right are all desirable. It is acknowledged that there are competing concerns to be balanced in developing appropriate policies and that a degree of flexibility and negotiation rather than a rigid approach will often be appropriate. However, it is also argued that current laws and policies treat the problem narrowly as a limitation of working time issue and focus on restrictions aimed at preventing employers from actively contacting their teleworking employees outside of working hours. While this is important, it is argued that passive surveillance and after-hours data extraction by employers also represent a threat to privacy and private life which teleworking employees are especially vulnerable to. It is proposed that this neglected issue should also be addressed by rights to disconnect laws and that rather than this being treated as an issue around which flexibility and negotiation are appropriate, law makers and labour unions should instead pursue an absolute prohibition on after hours data extraction.