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Explainer: Ireland kind of has the right to disconnect - but how does it work?

Workers can raise the matter with the Workplace Relations Commission.

A NEW CODE of conduct aiming to give workers the right to disconnect was signed into effect on 1 April, but for people seeking a better work-life balance, this is no joke. 

The code, which was developed by the Workplace Relations Commission, aims to allow employees to switch off from work outside of normal working hours, which means they don’t have to respond immediately to emails, telephone calls or other messages.

The purpose was to provide practical guidance and best practice to employers and employees, with business group Ibec and union group Ictu also involved in its development.

Technological advances have gradually seen employees become more contactable and accessible over the years, and pandemic-induced remote working has blurred those lines further.

Since the onset of the pandemic, in particular, many people have created bad working habits, which psychotherapist Siobhan Murray says can only be broken if employers make sure clear boundaries are in place.

“Many people have that fear of judgement of ‘I’m not doing my job’, even though they are doing the exact same hours as before, if not more,” said Murray. 

“I do think our biggest problem has been the last 12 months where people have had to work in a very different way than if they had been going into an office where it would be the conventional 9-5.”

She says companies working on their right to disconnect policies need to drive home to their employees that they don’t want them working outside of their contracted hours as policy alone won’t “flick a switch”.

How does the code work practically? 

Firstly, the code of practice applies to all types of employment, whether you are working remotely or not.

The WRC says that the code will assist employers and employees in navigating an “increasingly digital and changed working landscape which often involves remote and flexible working”.

It also seeks to provide assistance to those employees who feel obligated to routinely work longer hours than those agreed in their terms and conditions of employment.

There are three rights enshrined in the code:

  • The right of an employee to not have to routinely perform work outside their normal working hours
  • The right not to be penalised for refusing to attend to work matters outside of normal working hours
  • The duty to respect another person’s right to disconnect (by not routinely emailing or calling outside normal working hours

Based on these initial principles, the country’s employers are now being asked to engage with employees or unions reps to develop a right to disconnect policy that takes account of the particular needs of the business and its workforce.

The WRC says that subsequent policies should take account of health and safety legislation, the employee’s terms and conditions of employment as they relate to working time and the statutory obligations on both employers and employees, with particular emphasis on full compliance.

Individual responsibility on the part of employees is also required for future policies, according to the WRC, which says employees should be mindful of other colleagues’ right to disconnect, for example.

The WRC’s guide to the code of conduct also includes a generic template to get businesses started.

One template clause for communications states that e-mails should be checked or sent only during normal working hours, where possible.

“Employees should not feel that they must respond to social communications from colleagues outside of their working hours, and the Policy should state whether or not social media platforms are acceptable means of communication in that particular workplace,” the WRC suggests.

It also suggests that policy managers speak to team members if they notice that they are sending emails at odd hours or logging in excessively as this may be a sign that they are finding it difficult to manage their workload or ‘switch-off’.

Tánaiste and Business Minister Leo Varadkar said employers should now 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.

Jane Murphy from the Employment Bar Association says dividing obligations between employer and employee seems sensible, particularly at a time when many employees are working flexibly and remotely and often using a number of different devices to communicate

“As a result, it is not as easy as it might have once been for an employer to monitor and manage working time and practices effectively. It, therefore, seems appropriate that obligations are placed on employees to protect their own right and the right of others to disconnect,” said Murphy.

And if things go wrong?

If problems or issues arise, employees have the right to raise the matter with the Workplace Relations Commission.

While there is still no formal right to disconnect under Irish or European law, the code of practice provides practical guidance for employers and employees to assist in meeting existing obligations under existing legislation.

Failure to follow a code prepared under the Workplace Relations Act 2015 is not an offence in itself but the law provides that in any proceedings before a court, the Labour Court or the WRC, a code of practice shall be admissible in evidence

The decision to create a code of conduct around the right to disconnect rather than provide for it within legislation attracted criticism from opposition parties who accused the government of sidestepping substantive action to bring ‘always-on’ culture to a welcome end.

News of Ireland’s move prompted coverage from enviable nations whose workers are looking for similar changes. In the UK for example, two-thirds of employees surveyed recently said they wanted to see a right-to-disconnect policy in the upcoming 2021 UK Employment Bill

The European Parliament is also supporting similar proposals around a right to disconnect, with MEPs in January voting in favour of introducing new legislation across the 27-member bloc.

Sinn Féin spokesperson on workers’ rights Louise O’Reilly, who introduced legislation on the matter last November, argues that the code of practice “does not confer a single additional legal right on workers”.

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However, Murphy points out that the right to disconnect has sort of existed in our laws for many years already.

For example, the Organisation of Working Time Act 1997 sets out employees’ statutory minimum entitlements for the working week, annual leave, breaks and rest periods.

“One of the basic provisions is that there is a mandatory 48 hours average weekly working limit, except in very limited circumstances. The 1997 Act also makes the employer legally responsible for keeping accurate and complete records of employees’ working hours,” Murphy explained. 

“Another relevant piece of legislation is the Safety, Health and Welfare at Work Act 2005 which requires an employer not to engage in any conduct or behaviour that would put an employee’s health and welfare at risk.

A breach of those existing legal obligations can give rise to a cause of action on the part of the employee. By contrast, a breach of the code is not an offence, although the code can be relied upon as evidence in a claim before the Labour Court or the Workplace Relations Commission and can be taken into account by the court or adjudication officer in determining the case.

Often time, contracts include clauses in which employees agree to be contacted outside of work hours, but if the code is implemented correctly, a person’s contract of employment should be aligned with the code of practice, regardless of when the contract was signed. 

“The effect of the code will be to ensure that any such ‘agreement’ in an employee’s contract to contact outside of work hours is subject to strict rules and considerations,” said Murphy. 

“These rules and considerations should be set out by the employer in a right to disconnect policy which should be referenced in an employee’s contract of employment, therefore becoming part of the binding relationship between employer and employee.

“The policy should make clear that where possible, contact should only be made during normal working hours.”

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:

Adam Daly

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