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Always on: Ireland has no specific legislation on remote working - but do we lag far behind the rest of Europe?

The right to disconnect allows 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.

As part of The Good Information Project we are posing the question this month ‘What is the future of work after Covid-19?’. 

IT’S A CRITICISM often repeated of the government when it fails to act on an issue or acts in a manner that doesn’t impress the opposition – “we’re lagging far behind Europe on this”.

And it is a criticism that was repeated earlier this month, after the government unveiled its code of conduct on the right to disconnect. 

Put simply, the idea gives employees the right to switch off from work outside of normal working hours, including the right to not respond immediately to emails, telephone calls or other messages.

It’s particularly timely when the boundaries between work and home life have been blurred by remote working during the pandemic.

Tánaiste Leo Varadkar said the onus was now on employers to draw up the appropriate working arrangements and policies, to ensure that employees will have more options to work outside of traditional hours, which many people have availed of during the pandemic.

Labour and Sinn Féin, however, were quick to say that the right to disconnect should be enshrined in law to be effective.

Labour said that the code of conduct “will not address exploitation experienced by many workers” while Sinn Féin said the code “does not confer a single additional legal right on workers”. 

The examples of France, Spain, Italy and Belgium were also cited by Labour as an example of “best practice” that Ireland could follow. 

So where is the rest of Europe when it comes to the right to disconnect and other aspects of remote working?

Let’s take a look.

Working from home

There are some pre-pandemic European stats on how many people worked from home. 

There appears to be little distinction in these statistics on whether or not a country has extensively legislated for remote working or not. Some that have still have low levels of people working remotely. Others that haven’t may have higher numbers. 

For example, both Spain and France have legislation in place regulating remote working and the right to disconnect (more on that later). Ireland does not. 

In 2018, 15.7% of workers in France said that they worked from home “sometimes”. in Ireland, 12.9% of workers said the same. But, in Spain, 3.5% of people said they worked from home sometimes. 

In Sweden, which similarly has little in the way of legislation in this area, almost one third of workers (31.3%) said they worked from home sometimes. 

An ESRI study found that the number of people in Ireland who usually worked from home or did so sometimes before the pandemic was “roughly average in a comparative EU context”. 

On average across the EU, women were more likely to be working from home than men. But Ireland was one of eight countries to reverse that trend with 7.2% of men “usually working from home” compared to 5.7% of women.

Ireland may not have the kind of strong legislation in these areas that other countries do but, pre-pandemic at least, this did not translate to a situation where Irish employees worked remotely less than their EU counterparts.

Working time and the right to disconnect

Other EU countries have had a right to disconnect in place for some years.

An EU directive on different aspects of working time from as far back as 2003 set the groundwork. That directive says that EU member states must ensure workers are given a minimum daily rest period of 11 consecutive hours per 24-hour period. 

Although not legally binding, directives such as this require that member states legislate to reflect the directive. 

France took the lead on this and the droit à la déconnexion law was passed in 2016. It requires companies with 50 or more employees to enter an agreement with workers on their right to disconnect.

Checking emails outside normal work hours is therefore “compensatable time” just like being on a work phone call is. 

Under the French law, there are no direct sanctions on companies for not implementing the rules but an employee can sue if they feel their rights have been infringed.

One notable case saw a former worker awarded €60,000 by the French Supreme Court after the French-wing of pest-control firm Rentokil required the employee to “permanently leave his telephone on…to respond to requests from his subordinates or customers” in case of any problems while not at work”.

According to research from Eurofound, France is joined by Belgium in having “very high coverage of the right to disconnect”. 

“Although the legislation in these countries applies only to companies with more than 50 employees, these legislative provisions are supplemented with collective agreements in almost all sectors, which are extended to the majority of the workforce (and, in many cases, include the right to disconnect),” it said.

Legislation in Spain, Italy and Luxembourg also confers a “very high coverage” as employers are required by law to draw up protocols on the right to disconnect. 

In these countries, it noted: “In each case, the legislation does not provide for a direct right. Instead, it requires the social partners at sectoral or company level, or indeed the individual employee, to reach an agreement on how to make this right operational.”

In the case of Spain, employees in both the public and private sector are entitled to disconnect their device outside of working time. As in France, companies are also obligated to come up with a stated policy about switching off.

eurofound Source: Eurofound

Other countries are deemed by Eurofound to have legislation “promoting” remote working and the right to disconnect, and they include Czechia, Lithuania, Poland and Portugal.

It said: “[For countries promoting this] legislation exists on telework or remote work with a direct link between the potential benefits of these flexible forms of work and work–life balance, but it does not specifically deal with any negative consequences [of always being on].”

Lack of consensus

Other countries, such as Germany, the Netherlands, Croatia, Estonia and Greece, have legislation in place regulating remote work while not necessarily having a direct link to work-life balance in their laws.

These countries instead usually rely on collective bargaining and sectoral agreements between employers and workers. Volkswagen in Germany was an outlier in this regard having set its internal servers not to send emails to workers between the hours of 6.15pm and 7am. 

Even in these countries, however, the pandemic is forcing their hand somewhat to bring in more comprehensive legislation.

In Germany, for example, emergency legislation brought in during the pandemic said that employers must offer the option of working from home unless there are “compelling operational reasons” why an employee can’t work from home.

It is also in the process of passing legislation in the future allowing an employee to request remote working. Such legislation is expected in Ireland in the third quarter of this year.

Ireland is among countries such as Sweden, Denmark and Norway which have no legislation governing remote work. In the case of the Nordics, Eurofound said this reflected the precedence taken by collective bargaining in those countries. In Ireland, it is also individual companies and sectors that liaise with unions with a view to bringing out about the best policies.

It noted: “Despite this legislation, it is not universally accepted that a specific legal right to disconnect is necessary, because the Working Time Directive already provides for maximum working hours.”

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Eurofound specifically mentions national court cases that have ruled in these issues such as the Irish Labour Court’s decision in 2018 to award a Kepak worker €7,500 over a requirement to deal with out-of-hours emails on a regular basis. 

It found that there’s no Europe-wide consensus in this area, which can lead to “inequalities between countries, sectors and types of worker in terms of protection against the impact of [remote work] on work-life balance and worker health”. 

Four-day week

Another concept that is pushed by unions in many countries but has yet to gather significant traction in Europe is that of a four-day working week. 

Those in favour say working fewer hours improves a worker’s productivity, their commitment and their happiness. 

It has been trialled by specific companies – including some in Ireland – but until this year no government across the EU had formally adopted a policy on it.

In Ireland, the government has appeared quite resistant to the idea.

Back in 2019, Minister for Finance Paschal Donohoe was asked a parliamentary question about the possibility of moving the public service to a four-day week. 

In his answer, Donohoe made the assumption that the fifth day of every week would need to be filled by staff when calculating the cost. 

“Assuming that transitioning to a four-day week would result in a need to replace one-fifth of public service working hours, the estimated cost would be €3.9 billion,” he said. 

However, Donohoe said that it’d likely cost the Exchequer more than this given how a range of factors such as the amount of reduced working hours, the effect on frontline services and the impact on agency expenditure would be affected. 

“Given the issues outlined above, it is likely the cost would exceed this,” he said.

That position has not changed under the current government. 

In an answer to a parliamentary question last month, Tánaiste Leo Varadkar said his department has not conducted research on the impact of moving to a four-day week. 

“It is not something I am currently considering,” he said, adding that there is a large volume of work under way on the topic of flexible working instead.

One country that is now taking a close look at a four-day working week is Spain. 

Last month, the Spanish government agreed to launch a pilot project for companies interested in moving to a four-day week.

The €50 million in funding will provide for companies to trial these reduced hours. It’s hoped up to 200 companies could take part, with their costs of moving to a four-day week subsidised in the first three years. 

Iñigo Errejón, of the left-wing Más Páis party, said the move would launch “the real debate of our times” and that it was an idea whose “time has come”.

Proponents of the four-day work concept will be keeping a close eye on Spain for how that project turns out but, for now at least, it’ll be individual companies in Ireland opting for that switch rather than stemming from government policy. 

This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

About the author:

Sean Murray

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