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02 December 2020
With no definitive end in sight to the COVID-19 crisis, working from home (where that is possible) for large parts of the workforce is set to continue for the foreseeable future. The mass move to homeworking triggered by the pandemic has shone a spotlight on the increasingly blurred boundaries between work and home and reignited the debate on the right to disconnect.
Even after the COVID-19 pandemic passes, its effects will have long-lasting repercussions on the employment landscape. While the 'death of the office' narrative might be a little bit over-dramatic, the pandemic has had a transformative effect on working practices and, in some areas of the economy, has forced a significant cultural shift in mindset. Many workers will want to continue working from home even when their workplace reopens, while others may prefer to split their time between the workplace and their home. Others are eager to get back into their usual workplace.
A recent survey commissioned by the Irish Heart Foundation has estimated that many people who are working from home are sitting down for an average of two hours and 40 minutes longer per day than when working from their usual workplace, potentially because:
Work has clearly encroached into people's homes. Even when employers are not actually asking their employees to be present all of the time, it is increasingly difficult for employees to switch off or disconnect as they struggle to create boundaries between work and the rest of their lives. The collective experience of these challenges is placing a greater significance on the right to disconnect.
The right to disconnect is not a new concept. Technology has been blurring the line between work and personal life since long before the COVID-19 pandemic. In recent times, the government has recognised this issue and the broader issue of work-life balance and flexible working as an area of increasing importance across the workforce.
The Department of Business Enterprise and Innovation 2019 report on remote working noted that disconnecting from work is an increasingly important issue for employees engaging in remote work. In a national employee survey on remote working that was carried out for the report, 46.7% of respondents cited "switching off/overwork as the biggest challenge of working remotely". In addition, in January 2020 the Department of Justice launched a public consultation on flexible working, which aims to help the government address and consider a number of issues relating to flexible working, including the right to disconnect.
As part of its programme for government, the government referred to the right to disconnect in the wider context of the work-life balance and committed to "bring forward proposals on a right to disconnect in 2020". It also stated that it would consider "a role for the Workplace Relations Commission in drawing up a code in this area" (for further details please see "Impact of July Stimulus Plan and Programme for Government on employers").
The scope of any right to disconnect and the manner in which it might be implemented is unclear. However, it would likely provide employees with the right:
Since 2016, French employers (regardless of size) have had to address the right to disconnect for employees in their terms of employment. In 2017 further legislation on the right came into effect which required French employers with more than 50 workers to set out non-working hours during which staff were not supposed to send or answer emails.
In 2018 Spain adopted new legislation providing the right to disconnect during rest periods and holidays. Italy has also addressed the right to disconnect through a 2017 law on smart working. Other jurisdictions have followed suit by introducing new legislation, including Belgium, Canada, India, the Philippines and Portugal.
The Organisation of Working Time Act (OWTA) 1997 already provides that employers cannot permit employees in Ireland to work more than 48 hours per week on average (except in limited circumstances). There is no option for employees to opt out of this rule, like there is in the United Kingdom. The OWTA also sets out minimum requirements for daily and weekly rest periods for employees and requires employers to monitor and maintain records of working hours to ensure that this maximum working week limit and mandatory rest periods are adhered to.
Although Irish law does not explicitly refer to a right to disconnect, the law recognises the importance of employers adhering to the working time limits and ensuring that employees have adequate rest periods from work. An example of this can be seen in a 2019 case brought under the OWTA before the Labour Court in which the employee, who was a business development executive, was awarded €7,500 in compensation because of her employer's breach of the working time rules. The employee produced copies of emails sent to and from her employer between 5:00pm until midnight and before her normal working time. The court accepted that, although the employer did not require her to work beyond her normal working hours, it had effectively permitted her to work in excess of the maximum working hours limits under the OWTA. The employer was aware of the employee's working pattern, had failed to keep proper records of her working hours and had not addressed her working hour pattern.
While this decision is a helpful example of how the OWTA protects employees' rights, the legislation does not address some of the issues that employees might have in switching off and disconnecting from work outside of their core working hours where this does not breach working time limits.
Some suggest that the OWTA's protection is also limited because these types of case are rare and are normally brought only after the employment relationship has been terminated. Even before the COVID-19 pandemic, many employees' working hours may have exceeded OWTA limits, notwithstanding the potential liability exposure for their employers. Enacting specific legislation on the right to disconnect is likely to be of limited value unless clear guidance is provided to employers and employees to ensure a broader recognition of the importance of disconnecting from work, in terms of complying with working time limits and health and safety obligations.
Notwithstanding the protection afforded to employees under existing working time rules and health and safety legislation in Ireland, the current legal framework is inadequate to ensure a genuine right to disconnect. (In reality, work beyond the working time thresholds often goes unnoticed and is not properly monitored.) It remains to be seen how the government will choose to tackle the issue. Introducing a code of practice or adopting an approach of encouraging employers to implement a right to disconnect policy may not be enough.
Irish employers may in the meantime decide to follow the lead of employers in other countries – or indeed their own group companies – which have taken a more proactive approach to the right to disconnect. Most notably, German companies have a history of implementing a right to disconnect through employment policies. Volkswagen implemented a policy in 2011 to stop email servers from sending emails to the mobile phones of employees between 6:00pm and 7:00am and Allianz, Telekom, Bayer and Henkel have similar policies in place to limit the number of work-related digital connections that employees have after working hours.
In Ireland, Allied Irish Banks appear to be ahead of the trend by agreeing a right to disconnect policy with the Financial Services Union. The policy reportedly covers areas such as emails, meetings and calls (including virtual ones) and sets guidelines on when people should arrange online meetings to avoid interfering with workers' personal time. It also emphasises workers' rights to make themselves unavailable during breaks, when they finish work or when they have time off.
The COVID-19 pandemic has shone a light on the impact that working from home can have on mental health and wellbeing and the potential negative, longer-term consequences for employee engagement, productivity and organisational culture. As homeworking seems here to stay – at least for some – it will be increasingly important for employers to take account of these issues as they begin to consider their workforce strategy beyond the pandemic.
For further information on this topic please contact Síobhra Rush or Declan Groarke at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
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