On Thursday 1 April 2021, the Code of Practice on the right to disconnect (the “Code”) was signed into law effective immediately. This article considers some of the key issues highlighted in the Code and how both employers and employees can jointly comply with their obligations under the Code.

What is the right to disconnect?

The right to disconnect is the right of employees to “switch off” from work outside of normal working hours, including the right to not respond immediately to emails, telephone calls or other messages. There are three rights enshrined in the Code which have come into effect:

  • The right to not have to routinely perform work outside of normal working hours.
  • The right not to be penalised for refusing to attend to work outside of normal working hours.
  • The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).

How is the right to disconnect enforced under Irish law?

There is no formal right to disconnect under Irish or European legislation. However, there is an array of existing employment legislation, which protects employees from being overworked and working outside of their normal working hours. As such, the Code places joint obligations on both employers and employees within the context of existing legislation to promote the right to disconnect.

The Organisation of Working Time Act 1997

  • Employers cannot permit employees to work more than a maximum of 48 hours per week on average and they must keep records of employees’ hours worked.
  • Employees have a responsibility to cooperate with any appropriate mechanism introduced by the employer for recording of working time.
  • Employers must also ensure that employees receive specified breaks within the day, their daily and weekly rest and their statutory entitlement to annual leave and public holidays.
  • Employees should provide written notice to their employer if they are not able to avail of any statutory rest period or break and the reason for this.

The Safety, Health & Welfare at Work Act 2005 

  • Employers must ensure that staff do not work excessive hours by ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. Employers should review current risk assessments and safety statements in light of the right to disconnect.
  • Employees are required to comply with any system for recording working time by ensuring they take reasonable care to protect their safety, health and welfare at work and ‘not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’
  • An employee should not be penalised for complying with any provision or performing any duty or exercising any right under the 2005 Act.

The Employment (Miscellaneous Provisions) Act 2018 

  • Employees must receive a written statement of their core terms of employment within five days of starting employment, including the working hours that they are reasonably expected to work in a normal working day and week.

The Terms of Employment (Information) Act 1994-2014 

  • Employees must receive a written statement of terms within two months of starting employment, which includes confirmation of their working hours and overtime.

Other obligations conferred on employees under the Code

  • Being mindful of their colleagues’, customers’/clients’ and all other people’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).
  • Being conscious of their work pattern and their work-related wellbeing and taking remedial action if necessary.

What are the consequences for not complying with the Code?

While the failure to follow the Code is not an offence in itself, the Code is admissible in evidence in proceedings before the WRC, the Labour Court or the Civil Courts. Considering existing obligations under employment legislation as outlined above, an employee may pursue a complaint under this legislation and the employer’s compliance with the Code may be taken into account.

The Code also provides if an employee’s right to disconnect is not being respected or their workload is such that they are not able to disconnect at the end of their normal working day, s/he may eventually utilise the Company’s grievance policy. Once the grievance policy is exhausted and the concern remains unresolved, this may ultimately result in a constructive dismissal claim under the Unfair Dismissals Acts 1977 – 2015, due to the employer’s failure to meet the employee’s right to disconnect.

Accordingly, it is crucial that employers ensure they have an appropriate policy in place to prevent such disputes from arising or, in the worse-case scenario, are in a position to adequately defend such claims if and when they arise.

What should be included in a right to disconnect policy?

While the Code provides a template policy, this will need to be adapted to reflect the unique needs of the employer’s business and workforce. As such, the Code provides that employers should engage proactively with employees, their trade union or employees’ representatives to develop their own individual right to disconnect policy and should include:

  • An emphasis on the importance of complying with the obligations of both employers and employees under existing legislation (as set out above).
  • The expectation from the outset that staff disconnect from work emails, messages, etc., outside of their normal working hours and during annual leave but that there may be exceptions to this as outlined in the policy.
  • Identifying the reasons and instances when an employee may need to work or be contacted outside of normal business hours. The Code lists a number of non-exhaustive examples, including filling in for a sick colleague at short notice, where unforeseeable circumstances arise or where business and operational reasons require contact out of normal working hours.
  • Where relevant, the policy should address the issue of working across global time zones and international travel, which may result in connecting with clients or colleagues outside of normal working hours.
  • A clear explanation on the application of the policy to different departments, services in the business, positions, levels of seniority or seasons throughout the business year.
  • Whether employees are permitted to work flexibly and/or remotely.
  • The tone of any communications sent outside of an employee’s normal working hours should be addressed in the policy. The Code promotes the use of out of office pop-up messages, a footer on emails indicating the employee’s normal working hours, delay in sending emails etc.
  • The integral role of managers in successfully implementing the policy and highlights that managers should receive appropriate training to reinforce appropriate behaviours around disconnecting from work. Interestingly, the Code also requires that managers recognise and take action when an employee displays a reluctance to disconnect due to excessive workload, performance issues, or the organisation’s culture.
  • That it is read in conjunction with other policies including the Dignity at Work, E-communications, Data Protection and Confidentiality Policies.
  • How to raise a concern if the employee’s right to disconnect is not being respect or their workload is such that they are not able to disconnect at the end of their normal working day. In the first instance, this will include raising the matter informally, and if this does not resolve the issue utilising the Company’s grievance policy.

Next steps for employers

The Code serves as an urgent reminder for organisations to address any culture issues, which fail to respect the right of employees to switch off from work outside of normal working hours. This task is anything but a simple box-ticking exercise and requires organisations to consider the wider implications of the Code on its business and workforce as a whole.

Employers should consider any potential culture shift sooner rather than later as in Q3 2021, employers will be faced with a further challenge of complying with new legislation which is promised to provide employees the right to request remote working.

If you require advice regarding how this Code applies to your organisation or assistance in drafting a Right to Disconnect Policy, please contact Bláthnaid Evans or Sheila Spokes, +353 1 639 3000 or visit www.leman.ie