Employment Law: Obligations under ‘The Right to Disconnect’

The newly published Code of Practice on ‘The Right to Disconnect’ reflects the changed employment dynamic expideted by Covid-19, as well as the inevitable impact of technology. It also forms part of the Government’s wider aims in the area.

Jane Murphy BL examines the legal basis and obligations arising under the code for employers, and the process for employees to raise grievances

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Introduction

On 1^st April 2021 a new Code of Practice was signed into effect which aims to give workers the “right to disconnect”. The Code came into force immediately and applies to all types of employment. Although it does not confer legal rights, the Code provides practical guidance to employers and employees to assist in meeting existing statutory obligations. If employees experience problems regarding their right to disconnect from work, they have the right to raise the

matter with the Workplace Relations Commission (“the WRC”). The Code is highly likely to be referred in WRC determinations, in spite of not being legally binding, given the approach of the WRC to other Codes of Practice.

Legislative Basis

The Code of Practice on the Right to Disconnect was developed by the WRC following a request from the Tánaiste and Minister for Enterprise and Employment, Leo Varadkar, in November 2020. Section 20(2) of the Workplace Relations Act 2015 (“the 2015 Act”) provides, at the request of the Minister, for the preparation of draft codes of practice by the WRC.

Codes of Practice are written guidelines, agreed in a consultative process, setting out guidance and best practice. While failure to follow a code of practice prepared under the 2015 Act is not an offence in itself, section 20(9) provides that in any proceedings before a court, the Labour Court or the WRC, the Code shall be admissible in evidence. It further provides that “any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question”.

Purpose of the Code of Practice

According to the Code, the right to disconnect refers to “an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.” There are three main elements of the right to disconnect:

1. The right of an employee to not have to routinely perform work outside their normal working hours;
2. The right not to be penalised for refusing to attend to work matters outside of normal working hours, and;
3. The duty to respect another person’s right to disconnect (e.g. by not routinely emailing or calling outside normal working hours).

Existing Relevant Legislation

The right to disconnect is already enshrined in Irish law under the provisions set out below, and, as noted above, the Code of Practice aims to give practical guidance to employers and employees in meeting these existing obligations. 

Organisation of Working Time Act 1997

While it does not explicitly refer to a “right to disconnect”, the Organisation of Working Time Act 1997 (“the 1997 Act”) provides employees with protections to ensure that they do not work excessive hours and are afforded adequate breaks at specified intervals. There is also a mandatory 48 hours average weekly working limit, except in very limited circumstances.

The duty of employers to ensure compliance with the provisions of the 1997 Act was addressed in Kepak Convenience Foods Unlimited Company v O’Hara [2018] 7 JIEC 1901. Ms. O’Hara was employed by Kepak as a business development executive and contracted to work 40 hours per week, however the evidence was that she would regularly receive and respond to emails from before 8am and until after midnight. Ms. O’Hara thus claimed that she was required to work in excess of the weekly average 48 hour maximum permitted under the 1997 Act. In response, Kepak argued that there was no obligation on Ms. O’Hara to work in excess of 48 hours per week and that she was doing so as a result of her own inefficiency.

In finding in Ms. O’Hara’s favour, the Labour Court increased the compensation awarded by the WRC Adjudication Officer from €6,240 to €7,500 and made two notable findings. Firstly, the Court found that where working time records are not kept by the employer as required under the 1997 Act, the employer carries the onus of demonstrating compliance with the 1997 Act, including maximum weekly working hours.  Secondly, the Court found that the onus is on the employer to ensure that the employee is not working excessive hours. The Court did not accept Kepak’s defence that they did not require Ms. O’Hara to work the hours that she worked. The Court found that Kepak was, “through [Ms. O’Hara’s] operation of its software and through the emails she sent it, aware of the hours [Ms. O’Hara] was working and took no steps to curtail the time she spent working.”  In these circumstances, the employer “permitted” the complainant to work hours in excess of the statutory maximum hours under the 1997 Act. 

Safety, Health and Welfare at Work Act 2005

The Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) includes further relevant provisions. Pursuant to section 8(2)(b), the employer’s duties extend to “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”. Employees have an equivalent obligation under section 13(1)(a) and (e). These obligations include a requirement to comply with the working hour limitations of the 1997 Act.

Terms of Employment (Information) Act 1994

Section 3(1A) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”), as inserted by section 7 of the Employment (Miscellaneous Provisions) Act 2018, provides that an employee must receive a written statement of his or her core terms of employment within five days of starting employment. One of the core terms must establish the number of hours which the employer “reasonably expects” the employee to work per day and per week.

Obligations under the Code

While the Code makes clear that the onus of managing working time is on employers, it also emphasises the importance of individual responsibility on the part of employees. Under the Code, employers have the following obligations:

• Provide detailed information to employees on their working time, in accordance with the 1994 Act;
• Ensure that employees are informed of what their normal working hours are reasonably expected to be, in accordance with the 2018 Act;
• Ensure that employees take rest periods, in accordance with the 1997 Act;
• Ensure a safe workplace in accordance with the 2005 Act, including reviewing their risk assessment and safety statement where necessary;
• Not to penalise any employee for acting in compliance with any relevant provision.

The Code provides for the following obligations of employees:

• Ensure that they manage their own working time and take reasonable care to protect their own health and safety and that of co-workers in accordance with the 2005 Act;
• Cooperate fully with any mechanism utilised by the employer to record working time;
• Be mindful of others’ right to disconnect (such as co-workers and colleagues) by, for example, not routinely emailing or calling outside normal working hours;
• Notify their employer where they have been unable to take statutory rest breaks and the reason for same;
• Be conscious of their work pattern and take remedial action if necessary.

Right to Disconnect Policy

The Code also provides that employers should develop a “Right to Disconnect Policy” that takes account of the particular needs of the business and its employees. The emphasis of the policy should be on full compliance with existing statutory obligations and employees’ terms and conditions while recognising that occasionally legitimate reasons arise where it is necessary to contact staff outside of normal working hours.

The Code notes that “the proliferation of digital communication platforms combined with easily accessible technology means that sending or checking emails or messages outside of normal working hours has become habitual”. It is acknowledged in the Code that many employees request to work flexibly and outside normal working hours, however their right to boundaries between work and leisure should not be compromised. In relation to written communications, the Code provides the following guidance:

• Tone and sense of urgency should be proportionate;
• If not urgent, the email should state that an immediate response is not expected;
• If possible, the sender should use the “delay send” option and set it to a specified time on the next working day;
• Emergency communications should only be sent during emergency circumstances, including but not limited to ascertaining availability for rosters, to fill in at short notice for a sick colleague, and where business or operational reasons require contact outside of normal working hours.

The Code further provides guidance in relation to management, culture and oversight of the right to disconnect. Helpfully, it also includes a generic template policy which can be tailored to meet the individual needs of an organisation.

Breaches of the Code

If an employee feels that his or her right to disconnect is not being respected, the Code suggests that he or she attempt to resolve the problem informally in the first instance. If the employee feels that it would be too difficult to do this alone, it is suggested that he or she seek support, or for an alternative approach to be made by their manager, a member of HR, a trusted colleague or designated person or trade union representative.

If an informal approach is unsuccessful, the Code advises that the employer’s formal grievance procedure be utilised. Notwithstanding that a specific contravention of the 1997 Act can be referred to the WRC at any point, if the matter is addressed through the grievance procedure and still remains unresolved on completion, the employee may refer it to the WRC under the appropriate legislation and citing the Code.

Related Initiatives

The Code of Practice on the Right to Disconnect can be seen as part of a broad commitment by the Government to create more flexible family-friendly working arrangements. Many of the related initiatives are discussed in some detail in my paper “Recent Developments in Family Friendly Working Arrangements and Maternity Protection” which was presented to a breakfast briefing of the Employment Bar Association on 14^th October 2020. The paper can be found in the members’ section of both the Bar of Ireland and The Employment Bar Association.  

Finally, it should be noted that the Government is running a public consultation process until 7^th May 2021 on the introduction of a statutory right to request “remote work”. A consultation questionnaire is available here. For employers who have already adopted remote working arrangements, the Government has provided this checklist to assist in ensuring that all relevant obligations are met.

Jane Murphy BL Jane Murphy BL is a member of the The Bar of Ireland and the Employment Bar Association; Her full profile and contact details can be accessed here. Views expressed by contributors are not necessarily those of The Bar of Ireland. The Bar of Ireland does not accept any responsibility for them.