Irish employees’ ‘right to disconnect’ enshrined in code of practice

by Joseph K. Clark

All employees in Ireland now have the “right to disconnect” from work under an official code of practice drawn up by the country’s Workplace Relations Commission (WRC). Under the right to disconnect, employees are entitled to “switch off from work” and not engage in digitally-enabled communications outside their regular hours, including not responding immediately to work-related emails, telephone calls, or other messages.

Specifically, the code enshrines “the right of an employee to not routinely perform work outside normal working hours; the right to not be penalized for refusing to attend to work matters outside of normal working hours; [and] the duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).” The ‘Code of Practice for Employers and Employees on the Right to Disconnect’ came into effect on 1 April 2021, following its signing by tánaiste and employment minister Leo Varadkar, who requested the code’s development in November 2020.

He said that although much of the pandemic’s impact has been negative, particularly for those who have lost jobs or income, it also offers an opportunity to make permanent changes for the better. “The code of practice comes into effect immediately and applies to all types of employment, whether you are working remotely or not,” he said. “It will help employees, no matter their job, to strike a better work-life balance and switch off from work outside their normal working hours.”

While the purpose of the code is to provide practical guidance and best practice to employers, employees, and their representatives about the right to disconnect – and although any codes of practice are admissible as evidence in Irish courts – any failure to follow the code is not an offense in itself.

Irish employees

Instead, the code is designed to “complement and support employers’ and employees’ rights and obligations” under a range of Irish employment legislation, “provide assistance to those employees who feel obligated to routinely work longer hours than those agreed in their terms and conditions of employment”, and to “provide guidance for the resolution of workplace issues arising from the Right to Disconnect”.

Liam Kelly, director-general of the WRC, said: “Disconnecting from work and work-related devices necessitates a joint approach by employers and employees. While placing the onus of management of working time on the employer is appropriate, individual responsibility on the part of employees is also required.” The code added that employers should proactively engage with employees or their trade unions to develop the right to disconnect policies that consider the business’s and its workforce’s particular needs.

“The policy 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,” it said, adding that clear guidance around disconnecting and expectations for responding to digital communications should be provided to all employees.

“The Policy should communicate to all clearly and unambiguously its purpose and method of implementation. This communication must reach all company levels, from the most junior staff members to senior managers whose support of the Policy must be articulated clearly.”

Remote working

Varadkar separately announced on 1 April that a consultation on his plans to put the right of employees to ask for remote working into law will run until 7 May 2021. While all employees in Ireland can currently ask their employers for the right to work remotely, there is no legal framework around which a request can be made and how it should be dealt with. The upcoming legislation will therefore seek to set out how organizations can facilitate these requests. “Putting the right to request remote working into law will provide a clear framework around which requesting, approving, or refusing remote work can be based,” said Varadkar. “In putting this into law, we recognize that remote working doesn’t work for everyone or every organization,, sogovernment will take a balanced approach with the new legislation. I encourage employers and employees to engage with this consultation and make their views known.”

A UK right to disconnect?

Computer Weekly understands that several trade unions are also campaigning for a legal right to disconnect in the UK. The TUC, for example, published a report in late March 2021, warning that considerable gaps in British law over the use of artificial intelligence (AI) at work will lead to discrimination and unfair treatment of working people.

“It might be thought that these new technologies would be liberating for workers, and in some ways, they can be,” wrote the report’s authors. “But … new technologies are encroaching significantly on workers’ private spheres over and above the proper limits of professional and working time. Through AI and other forms of technology, increased digitization contributes to an ‘always-on’ culture in which employees are never entirely free from work.

“There is a growing sense that employers are increasingly expecting their workforce to be easily contactable at all times.” Writing in Computer Weekly, Andrew Pakes, research and communications director at Prospect Union, said the right to disconnect can help challenge hidden overtime practices and help alleviate the pressure to be on duty for longer hours, as well as the intrusive nature of workplace surveillance technologies being introduced to monitor employees working remotely.

“Many countries have already passed laws setting a framework for employers and unions to set rules to allow workers to switch off and take a break. Companies, such as Telefonica, have agreed company-wide “right to disconnect” agreements with unions,” he said. “With an Employment Bill due in the coming months, it is time for a serious debate about how to make sure that our employment rights keep pace with new developments and that the very technology that could herald a new age of freedom and flexibility for workers does not end up being used further to entrench the worst employment practices of the past.”

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