In March, Greens leader Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 to provide workers with the freedom to switch off once they clock off from work.

“For too long, the boundaries between work and life have been blurred, continuous connection to work has been normalised, and the pressure to be available at all hours of the day and night has been building for working people across the country,” Mr Bandt said in his second reading speech.

“With the proliferation of smartphones and advances in technology, work emails are only a notification away, and a phone call from your boss can interrupt a night out with friends or family. Workers are often expected to be on call 24/7 to answer emails, take calls and be available to their employers at a moment’s notice.”

However, as a handful of BigLaw partners told Lawyers Weekly, legislating a right to disconnect could have “significant unintended and problematic consequences” for the legal profession.

For example, Clayton Utz partner Daniel Trindade asked, “would a lawyer who refuses to read an out-of-hours email or take a telephone call in relation to an urgent client or court matter be properly discharging their obligations to the administration of justice, to the court or to the client?”

“Our profession requires us to put each of those interests ahead of our own, so exercising a personal right to ignore or refuse an email or telephone call may, unless it is due to health and safety issues, breach our professional obligations,” he advised.

Nonetheless, given the proliferation of “right to disconnect” laws in overseas jurisdictions, such frameworks are not out of the realm of possibility for Australia, and legal employers may well have to consider how best to ensure their staff can properly switch off from work, barrister Ian Neil SC recently discussed on The Lawyers Weekly Show.

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Switching off is, of course, fundamental for lawyers — not just outside of traditional business hours but also (and more critically) when they have days off.

Lawyers already are, as Lawyers Weekly recently reported, exhausted. If they are having to work (at least to some extent) on their days of leave, such exhaustion isn’t going anywhere.

As West Australian District Court Judge Mark Ritter suggested in February, young lawyers can and should consider unionising to combat poor treatment they receive and are exposed to. Such a suggestion may well be actively considered, should those professionals not feel as though a day of leave lives up to its name.

LinkedIn poll

Recently, UK-based legal publication Legal Cheek reported that lawyers in that jurisdiction are twice as likely to work on their days off compared to those in other professions. To see if the experience is similar (in the present market) for Australian-based practitioners, Lawyers Weekly created a poll on its LinkedIn page, asking how likely lawyers are to work while on leave.

The results of that poll are as follows:

The results show that, of the more than 1,000 legal professionals that responded, more than four in five (83 per cent) of lawyers are somewhat or very likely to work on their leave days.

Just one in 10 respondents said that they are not likely to work on leave days, and a mere 6 per cent never work while on leave.

The poll did not ask lawyers to detail the extent to which they work on leave days (assuming they do so) — such work could be anything from responding to a single email through to undertaking a full day of billing. The volume of work that one completes on a day off may well have influenced whether respondents who do work on leave days ticked “somewhat likely” or “very likely”.

The LinkedIn poll is, of course, not a scientific study and should not be taken as such. However, it does offer an insight into the mindset of Australia-based lawyers and how the post-pandemic professional services marketplace, as well as the sociocultural and environmental factors, may be feeding into the likelihood or otherwise that lawyers may choose — or be forced — to log on, even though they are supposed to be off the clock.

Why lawyers work extra hours at home

In conversation with Lawyers Weekly, Greg de Moore — an associate professor of psychiatry at Sydney’s Westmead Hospital — detailed the reasons that legal professionals may abstain from meaningfully switching off from work, as well as the impact it is having on them in the current climate.

“If you come across recent references to this topic (and there are many), you will find the following: that working increased hours at home, and not separating work-life from your home-life is damaging,” Mr de Moore proclaimed.

“That it results in increased stress and burnout, which, in turn, over time, can result in serious psychological consequences such as anxiety, depression, strained family relationships, and a significant impact on physical health. That it can result in poorer work performance, absenteeism, and reduced morale in the workplace.”

“We are also all familiar with the notion that our online existence — phones, laptops, iPads and social media — have confused work and home separation. And that COVID has, by allowing us to work from home, had a significant impact in compounding this crossover,” he said.

Most of us, Mr de Moore went on, have heard that we should — if we work from home — have a designated workspace, have separate devices for work and home, and avoid electronic devices in the bedroom.

“In addition, we probably know that we should work to a schedule, complete work in a timely manner and limit what is taken home; that we should communicate with our bosses about our workload, learn to say no to extra work, and perhaps even look for another job,” he reflected.

So, Mr de Moore asked, if lawyers have been told all of this, why do the figures listed in the LinkedIn poll suggest that such professionals don’t change or at least struggle to change?

“Part of the answer, for me, comes from conversations I have had with patients (and indeed in general life with colleagues), and that is, there are different reasons people work extra hours at home,” he opined.

“The more damaging pictures that arise in my clinical work are when employees are forced to work these extra hours due to financial need or feel coerced by certain types of work culture. In both situations, employees feel they have little power to alter the course of their working lives.”

“But, in other instances, even knowing the possible adverse consequences, some individuals choose this as a way of life,” Mr de Moore added.

“Sometimes this is personal ambition or extreme competitiveness or the seductive notion that all time has to be ‘productive’. Although these individuals may note the costs of working extra hours, in the end, they regard it as their decision.”

When he deals with people who have the capacity to move jobs, to reduce their hours, to rearrange their schedules, yet profess the desire to improve their work/life balance, Mr de Moore explained, it will ultimately come down to the following proposition: “Can they take an honest look at themselves, and do they have a clear idea what is of most value in their lives?”

“Some people will attempt to deal honestly with this question; others will not,” he warned. 

Editor’s note: Greg de Moore and the author of this story are both board directors for the Minds Count Foundation.