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Right to disconnect: What this means for employers and employees

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Even before the coronavirus pandemic, debate around the right to disconnect had been gaining traction.

But remote working has put the issue even more into the spotlight and has made it more difficult for many employees to disengage from work and refrain from engaging in work-related emails or other messages, during non-work hours.

The boundary between work and personal time has become even more blurred.

The government is aware of this and recently published a National Remote Work Strategy, part of which commits to publishing a code of practice on the right to disconnect.

While such a code would not be legally binding, it would be admissible as evidence in proceedings before the Workplace Relations Commission.

France was the first country to lay out rules in terms of switching off and Italy, Spain and Belgium have now also introduced regulations.

Also, in January 2021, the European Parliament passed a legislative initiative calling on the European Union (EU) to introduce a law on the right to digitally disconnect from work.

Read this article to learn more about the right to disconnect and the implications for your business and your employees. Here’s what it covers:

Is there a need for regulation?

What’s the current situation with working hours?

Is there any precedent?

What the right to disconnect means for employers

What employers should do?

Put a system in place now

Ciara Ruane is a senior associate at Dublin law practice, Pinsent Masons, and she believes the code of practice is needed.

She says: “The pandemic has resulted in many employers and employees having to adapt to remote working quickly and it has been a learning curve.

“In particular, there have been many reports published which indicate that employees are working longer or finding it harder to switch off.

“This is not good for employees or employers as this can lead to an increased risk of anxiety and burnout.

“As remote working is likely to remain a feature of the workplace, ensuring employees can switch off will be a key item on the agenda for many employers.

“The code of practice will helpfully set out best practices and approaches for employees and employers in relation to employee disengagement outside of normal working hours.”

However, Shane MacSweeney, employment law partner at Galway practice, MacSweeney & Company Solicitors, has some reservations about the proposal.

He says: “I think if it gives practical as opposed to theoretical guidance and assistance to employers on how to manage the recording of employees’ time, particularly employees that are working partly or wholly from home, then certainly it’s welcome.

“Unfortunately, my experience is that some of the codes of practice that have been introduced in recent years have stopped short in terms of providing practical, worthwhile guidance for employers when it comes to the nub of the issue.”

He also feels that the current legislation is adequate to ensure that employees do not work too many hours.

Currently any disputes concerning working hours fall under the Organisation of Working Time Act, 1997.

MacSweeney says: “The law is super clear on this. Section 15 of the Act states that an employer must not permit an employee to work in excess of an average of 48 hours per week over a reference period, which is normally four months for most employments. For some employments, it is six months.”

In addition, Section 25 requires an employer to keep records for three years, in order to demonstrate compliance with the Act.

Also, the Organisation of Working Time Act (Records) (Prescribed Forms and Exemptions) from 2001, stipulates the type of records that employers are obliged to keep and provides a template of the type of information that should be recorded.

A ruling in 2018 concerning an employee working at meat producer Kepak received widespread media coverage and brought the issue to the public’s attention.

The Labour Court ruled that the Kepak employee had exceeded her statutory working hours, as result of sending and receiving emails outside working hours and that her employer had failed to curtail or monitor her working hours.

MacSweeney says: “The Kepak case underscored the current legislation, but it did not create any new law.

“The case simply demonstrated that the burden remains on the employer to take measures to avoid permitting an employee to work in excess of an average of 48 hours per week.”

MacSweeney believes it’s practically challenging for employers, and particularly for smaller employers, to comply with the legislation.

In other countries, there is often a derogation for companies below a certain size in respect of certain employment measures, partly in recognition of the reduced resources available to such employers to comply with burdensome legislation.

This doesn’t generally happen in Ireland, although it’s being considered for the upcoming legislation on gender pay gap reporting.

MacSweeney adds: “Legislation does not treat an employer with five employees any differently to an employer with 5,000 employees and it does not recognise the clear inequality in resources and the limited capacity within smaller companies where often there is no dedicated human resource function, with dedicated knowledge on these issues.

“So, I think that the issue in Ireland is not that the law isn’t clear but it’s just that the burden of actually complying is significant and as a result, the level of compliance is for the most part extremely low.”

It’s imperative that you as an employer have a system in place to protect your business from any legal action (and speak to a legal expert if you need any help here). A policy on working time should be in place and should be clearly communicated to employees.

While certain jobs such as retail or manufacturing are much easier to monitor with, for instance clock-in and clock-out systems, it’s more difficult for office workers, particularly if they occasionally/regularly bring their work home.

MacSweeney suggests putting in place an electronic system or software where employees can regulate themselves by signing in when they’re working and signing out when they’re finished and where the system is monitored periodically by management, to ensure employees aren’t exceeding their work hours.

Pinsent Mason’s Ruane also suggests that permitting employees to have email footers outlining core working hours and advising that emails will not be responded to outside of those core hours can be simple and effective ways to implement boundaries.

Some sort of regulation on the right to disconnect is on the horizon.

There is momentum, especially now that the EU has come on board, though it will probably take several years before anything official is issued from the European side.

On the Irish front, the Tánaiste, Leo Varadkar, has said a group will meet every four months to monitor the implementation of the government’s remote working strategy, including the right to disconnect.

While there may be disagreement on the need for further regulation, working life is changing and you as a business owner need to keep up with the challenges this brings.

Though there is currently no specific regulation on the right to disconnect, you are still obliged to ensure that an employee is not working too many hours and you need to have a system in place to ensure this is monitored.

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