When an employee leaves the workplace, they generally want to be “off the clock.” However, technology now allows employers to reach their employees after work hours, through telephone calls, emails, text messages, etc. This blog examines the issue of the “right to disconnect” in employment law in Ontario.

What is the right to disconnect?

The right to disconnect was a policy requirement that was added to the Employment Standards Act, 2000 (“ESA”) in December 2021. The legislation was initially passed by the Working for Workers Act, 2021, and it made changes to the ESA. The ESA goes on to define what it means when discussing the “right to disconnect.” The ESA defines the term to mean as not engaging in work-related communications, including emails, telephone calls, video calls or sending or reviewing other messages, in order to be free from the performance of work outside of work hours.

What should be included in an employer’s right to disconnect policy?

There are some basic “right to disconnect” policy requirements that are set out in the ESA. For example:

• The policy must be a written policy.
• The policy must be about the right disconnect.
• The policy must include the date that it was prepared.
• The policy must include the date that any changes to the policy were made.
• The policy must be directed at all the employer’s employees, including managers or supervisors.

To be clear, the “right” to disconnect contained a “right to disconnect” policy is not as strict as it may seem and it does not mean necessarily that there is a “right” all employees always have in all industries to not be contacted outside of working hours. For example, there are no requirements in the ESA in terms of what are the expectations around who would be “on call” outside of work hours, or if managers have different expectations than regular employees, or what to do if a situation at work is urgent and the urgency takes place outside working hours, if there may be different industry standards based on the type of business the employer is in, etc. As such, each right to disconnect policy probably looks very different in different workplace settings with different employers and employees.

The Right to Disconnect and Constructive Dismissal

The above-noted “right” to disconnect does not leave the employee without recourse if the employer continues to communicate with the employee after-hours regardless of what is set out in a “right to disconnect” policy or even in the employment contract. In certain circumstances, the actions by the employer may amount to constructive dismissal. However, this is fact driven analysis which is best performed by an employment lawyer. An employment lawyer would review the “right to disconnect,” policy and employment agreement along with what the situation is at hand. For example, the employment lawyer would look at what the arrangement was between the employer and employee in terms of how they would communicate after-hours in the past, whether there was a change to that situation and when, and if there was a change, how significant was that change in communication.

Finally, to remind our readers, constructive dismissal occurs when an employer makes or intends to make a substantial change to the employee’s terms of employment without the employee’s consent. Generally, the terms of employment should be key aspects of the employment contract or relationship. Changes that are too small or made to less important employment terms will not trigger constructive dismissal. Once the claim for constructive dismissal has been made then the employee will generally claim common law and statutory damages in a wrongful dismissal suit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

How can Zeilikman Law help?

Approaching an employment lawyer is necessary for employees when there are issues surrounding the right to disconnect. The legal analysis of the right to disconnect and constructive dismissal is fact driven. Employment lawyers like the ones at Zeilikman Law can assist employees by reviewing the facts surrounding the matter at hand and help them determine what the next best steps are to take given what the law sets out about the “right to disconnect.”

For more information about the right to disconnect, please see our blogs entitled The Right To Disconnect In Ontario and The Right to Disconnect from Work and the Downfall of Non-Compete Clauses.

Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule a confidential consultation with one of Zeilikman Law’s employment lawyers.