As part of the strategy for remote work, the Department of Enterprise Trade and Employment committed to introducing in the first quarter of 2021 a new code of practice on the right to disconnect from work outside normal working hours. As promised, the new code of practice was signed on 31 March 2021. The code follows a public consultation and several months of public debate.(1)
The code aims to encourage employers to create a culture of good work-life balance and break bad habits whereby people feel obliged to respond to messages out of hours. Crucially, the code refers to a "right to maintain clear boundaries between work and leisure time".
The code defines the 'right to disconnect' as having three main elements:
- a right not to work routinely outside normal working hours;
- a right not to be penalised for refusing work outside normal working hours; and
- a duty to respect another's right to disconnect.
Codes of practice in Ireland are not legally binding of themselves but can be used in evidence against employers in claims for breach of employment rights.
This article explains what is in the new code and what it means for employers in Ireland.
What does the code of practice say?
To an extent, the code is not groundbreaking. It primarily addresses rights which already exist under Irish employment law. However, it does go slightly further to address the fact that working outside normal working hours has become a "bad habit" which must be broken. The main pieces of legislation addressed are outlined below.
Organisation of Working Time Act 1997
This act governs, among other things, maximum working hours, rest breaks, annual leave and public holidays based on the EU Working Time Directive. The code emphasises that employers cannot generally allow employees to work for more than an average of 48 hours per week and that they should keep records of hours worked. It should be noted that:
- unlike the United Kingdom, Ireland did not opt out of the 48-hour maximum working week (although there are exceptions); and
- the Organisation of Working Time Act has always included an obligation to record working time (even though many employers may not have been complying with this obligation).
Safety Health and Welfare at Work Act 2005
The code highlights employers' duty to:
manage and conduct 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 [of employees] at risk.
In 2005 when this act was introduced, it was primarily expected that this would address bullying in the workplace.
Terms of Employment (Information) Act 1994-2014
The code points out that the statement of terms and conditions of employment, which must be provided to employees (and is normally encapsulated in a more comprehensive contract), should include the hours of work that the employer reasonably expects the employee to work in a normal working day and a normal working week.
The code effectively amounts to an extension of existing Irish employment law rights, in that the expectation is that organisations must create a culture in which employees feel that they can disconnect from work and work-related devices and communications and that they will do this in a collaborative way.
On the issue of collaboration, it is helpful that the code also highlights employees' obligations to:
- ensure that they manage their own working time;
- cooperate with their employer to take care of their own health and safety;
- cooperate with any systems used to record working time when working remotely;
- be mindful of their colleagues' right to disconnect;
- notify their employer of any rest breaks that they could not take; and
- be conscious of their working patterns.
It is also not an absolute right to disconnect. The code recognises that there may be occasional legitimate situations where business and operational reasons require contact outside normal working hours.
The code recommends that employers engage proactively with employees or their unions to develop a right-to-disconnect policy addressing these issues. The policy should recognise that business and operational needs may result in situations which clearly require some out-of-hours working by some employees depending on:
- the service being provided;
- the employee's role;
- the needs of customers or clients;
- the unique requirement of critical services; and
- what was agreed in an employee's terms of employment.
These points are especially important for employees who work across different time zones and for employees who want to work flexibly, which is fine as long as the "right to maintain clear boundaries" is respected.
The code recommends that manager and staff training should specifically address the right to disconnect and should reinforce appropriate behaviour around disconnecting from work outside normal working hours. It also states that managers must recognise and act when an employee's inability or reluctance to disconnect appears to be linked to excessive workload or performance issues or when organisational culture is a contributing factor.
There are also some recommendations around the "tone and sense of urgency in communications being proportionate" and, where appropriate, the use of measures such as email footers and pop-up messages to remind employees and customers that there is no requirement to reply to emails out of hours and that an answer should not be expected.
In terms of raising concerns, the policy should direct employees to try to resolve any issues informally (in accordance with best practice as outlined in the code) and then through the employer's grievance procedure. Failing that, a referral to the Workplace Relations Commission under the working time or health and safety legislation is likely. A breach of the code can be used against an employer as evidence.
Key implications for employers
Time recording may become more important in sectors where this has not historically been common, which may be particularly true in remote working environments. Even though they were already obliged to monitor employee working hours, employers should now do this in a more visible and transparent way.
Implementing a right-to-disconnect policy will set a good grounding for an organisational culture in which the line between work and leisure is both visibly respected and taken seriously. However, employers should take some comfort from the fact that flexibility on both sides is recognised as a requirement for a workable policy in this space.
Endnotes
(1) For further details on the right to disconnect discussion please see:
