The Right to Disconnect allows employees to refuse contact not only from their employer, but also from external third parties. How can HR balance the new legislation with meeting customer and client needs?

There has been much coverage and discussion about the newly introduced Right to Disconnect, particularly around the right of employees to refuse contact from employers provided such refusal is not unreasonable.

One of the more challenging aspects of the Right to Disconnect, which has been overlooked in much of the analysis and commentary, is that it applies not just to contact from employers but also to contact from third parties. 

Section 333M(2) of the Fair Work Act 2009 (Cth) (Act) states: 

“An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.” 

Third parties include customers or clients of the employer’s business, as well as suppliers, external contractors or consultants. Contact from a customer or client to an employee of the business would, in almost all circumstances, relate to the work of the employee. 

The implementation of the new laws could have a significant impact on occupations where customers or clients regularly contact employees directly out of work hours. It gives rise to the prospect of employees either not responding to such contact from customers or clients, or simply informing the customer or client that they are refusing to attend to their issue or query at that time. 

For businesses which adopt a “Customer is King” philosophy, such a response would be contradictory to their client service ethos. The right could conceivably affect a range of industries such as professional services, real estate, information technology and finance.

As such, employers need to consider measures to effectively balance the need to serve customers and clients with the Right to Disconnect. 

How can businesses prepare third parties?

Here are some practical steps for employers to consider when it comes to managing the Right to Disconnect with third party providers or clients:

1. Discuss the issue with employees

Ensure employees know the scope of the right (in case they hold the mistaken but commonly held belief it is an absolute prohibition on out-of-hours contact applying to all employees) and gain an understanding of their individual position on out-of-hours contact from customers or clients. 

This can prevent both the business and its customers or clients being blindsided by a non-response or a refusal. 

Of course, in discussing the Right to Disconnect with employees, employers need to be careful not to misrepresent the scope of the right – for example, an employer would be misrepresenting the scope if it asserted an employee’s caring responsibilities are not relevant to whether they can reasonably refuse contact from a customer or client – or threaten any adverse action if an employee proposes to exercise the right. 

It would be prudent for any messages from employers to be carefully scripted to ensure accurate information is given to employees. 

A discussion like this can also be an opportunity for employers to set expectations with employees, particularly if the view of the employer is that a refusal of certain contact would, in the case of that employee, be unreasonable under the Act.

2. Adopt communication protocols

Where appropriate, customers or clients who seek to make out-of-hours contact with an employee where it would not be unreasonable for the employee to refuse the contact should be sent a carefully crafted message (which may need to be an automated text message or part of a voicemail message) that the employee will not be in a position to assist them until working hours (which should be specified) commence. 

A message like this should ideally also form part of the email sign-off for employees who elect to exercise the right. This would assist in minimising the prospect of any brusque or inappropriate responses from an employee to a customer or client. 

“For businesses which adopt a “Customer is King” philosophy, such a response would be contradictory to their client service ethos.” – Michael Byrnes, Partner, Swaab

It will be easier to mandate these measures on a device provided by the employer rather than a personal device the employee uses, pursuant to a Bring Your Own Device (BYOD) policy. 

Of course, if an employer is seeking to argue that a refusal of out-of-hours contact is unreasonable, but has a BYOD policy, be ready for the argument from an employee in the event of a dispute that if they are expected to respond to customers or clients out of hours, why have they not been provided with a device to do this?  I suspect such an argument would likely find favour with the Fair Work Commission.

3. Set expectations with customers and clients

If customers and clients are used to dealing with certain employees who may now (not unreasonably) refuse contact from them, then the business may want to have a discussion with the customer or client about either adjusting their after-hours service expectations or adopting alternative arrangements for contact with the business at those times. 

One consideration for employers is that unlike stop-bullying orders, which can be obtained against third parties such as customers or clients, Right to Disconnect disputes are between the employer and employee. 

The orders the FWC can make, pursuant to section 333P of the Act, are confined to preventing either the employee or employer taking certain actions inconsistent with the scope of the right.

Of course, such orders could create a difficult situation that may require diplomacy on the part of the employer to communicate with a customer or client if they are the third party whose contact has precipitated the dispute and FWC orders.

By establishing clear expectations among both employees and external third parties, HR can avoid situations like this and ensure their business adjusts quickly and smoothly to the Right to Disconnect.

4. Assess job descriptions and employment contracts

Some of the factors the FWC must consider under the Act in determining whether a refusal of contact by an employee is unreasonable include: 

• The nature of the employee’s role and level of responsibility (for example, are they in a senior position?)
• Whether the employee is compensated to perform work during the period in which contact or attempted contact is made, or for working additional hours outside their ordinary hours of work. 

If there is an expectation that an employee will respond and deal with customers and clients outside working hours, then these expectations should ideally be made clear in both the employment contract and position description for the role. 

The remuneration payable to the employee should also consider the need to be available to respond and deal with such contact. 

As stated above, consider whether the application of BYOD policies might run counter to an argument from the employer that a refusal from certain employees is unreasonable. 

This article was originally published on the Swaab website. You can view the original here.  Michael Byrnes is a Partner at Swaab law firm.

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

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