From Inbox to Insurance: The Right to Disconnect and Employment Practices Liability Insurance (EPL) Implications for Brokers

Introduction

Employment issues are a key concern for business owners as they can be held liable for decisions they make regarding employment, promotion and dismissal, the procedures they follow and the type of working environment they provide for employees.

EPL provides cover for actions taken by employees against employers for a range of issues relating to employment including alleged discrimination, unfair dismissal, sexual harassment, and bullying.

Implementation of the Right to Disconnect laws

The Right to Disconnect laws applied to non-small business employers from 26 August 2024. For small businesses (those with fewer than fifteen employees) the laws applied from 26 August 2025 representing a further evolution in workplace reform and adding new compliance challenges and potential liabilities for your clients.

What Is the Right to Disconnect?

Employees now have the legal right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is unreasonable.

These rules do not make it unlawful for an employer to contact an employee outside working hours. They give employees a right to refuse unless doing so is unreasonable.

When determining if an employee’s refusal is reasonable, the following factors are considered:

• The reason for the contact
• How the contact is made and how disruptive it is for the employee
• How much the employee is compensated or paid extra for out of hours work
• The employee’s role in the business and level of responsibility
• The employee’s personal circumstances, including family or caring responsibilities.

Importantly, the right to disconnect is a workplace right under the Fair Work Act 2009 and an employer cannot take adverse action against an employee because of their rights at work.

Adverse action can include being sacked or fired (dismissed), demoted and overlooked for promotion.

More detailed information can be found on the Fair Work Australia website.

Why these changes matter for Brokers and Clients

Employment disputes are on the rise. In the 2023-2024 year the Fair Work Commission received 14772 unfair dismissal claims, a 34% increase over the prior year[1]. The right to disconnect introduces another layer of risk, making it critical for brokers to help clients understand and manage exposure.

There is currently a case on foot involving a Queensland teacher who is suing her former employer for $780,000 alleging wrongful dismissal. The right to disconnect is but one element of the allegation of wrongful dismissal and the case is yet to be determined by the court.

EPL Implications

EPL policies may respond to claims arising from breaches of workplace laws, including the right to disconnect. For many employers, the importance of EPL may increase due to these changes.

Coverage depends on policy wording, so brokers should review terms and clarify the circumstances where claims may be made.

A Value-Add Opportunity

This legislative change is a chance for brokers to add real value—by helping clients stay compliant, manage employment practices risks, demonstrate the benefits of EPL, and build healthier workplaces. Your local BIA underwriter is available to assist if you have any further enquiries.

Important Notice

Berkley Insurance Company (limited company incorporated in Delaware, USA) ABN 53 126 559 706 t/as Berkley Insurance Australia is an APRA authorised general insurer. Information provided is general only, intended for brokers and has been prepared without taking into account any person’s particular objectives, financial situation or needs. Insurance cover is subject to terms, conditions, limits, and exclusions. When making a decision to buy or continue to hold a product, you should review the relevant policy documents.

[1] Fair Work Commission Annual Reports “Access to Justice” 2022-2023 and 2023-2024