As part of the Strategy for Remote Work, the Irish Department of Enterprise Trade and Employment committed to introduce a new Code of Practice on the right to disconnect in the first quarter of 2021. The new Code of Practice was signed at the very last minute of that quarter, on 31 March. The Code follows a public consultation and several months of public debate (see here for some of our recent contributions to the debate). 

The Code is all about employers creating a culture of good work/life balance and breaking 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:

(1) a right not to work routinely outside of normal working hours;

(2) a right not to be penalised for refusing work outside normal working hours; and

(3) 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.

What does the Code of Practice say?

To an extent, the Code isn’t ground-breaking, in that it primarily addresses rights which already exist under Irish employment law. However, it does go slightly further, to address the fact that working outside of normal working hours has become a “bad habit” which needs to be broken. The main pieces of legislation addressed are as follows.

The Organisation of Working Time Act 1997. This governs (amongst 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 a week and should be keeping records of hours worked. It should be noted that (1) unlike the UK, Ireland did not opt out of the 48 hour maximum working week (although there are exceptions to this); and (2) 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 to date).

The Safety Health and Welfare at Work Act 2005. The Code highlights the employer’s 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”. Back in 2005 when this was introduced, it was primarily expected that this would address bullying in the workplace.

The 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.

What’s new?

The Code effectively amounts to an extension of existing Irish employment law rights, in that the expectation is that organisations will have to 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 calls out employee obligations:

• to ensure that they manage their own working time;

• to co-operate with their employer to take care of their own health and safety;

• to co-operate with any systems used to record working time when working remotely;

• to be mindful of their colleagues’ right to disconnect;

• to notify their employer of any rest breaks that they could not take; and

• to 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 out of normal working hours.

What should employers do?

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/clients;

• the unique requirement of critical services; and

• as 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 training of managers and staff should specifically address the right to disconnect and should reinforce appropriate behaviour around disconnecting from work outside normal working hours. It also says that managers must recognise and act when an employee’s inability or reluctance to disconnect appears to be linked to excessive workload, 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, 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

We predict that time recording will become more important in sectors where this was not historically commonplace, and that this will 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.

Download the Code of Practice here.