The Right to Disconnect

LISA QUINN O’FLAHERTY

Solicitor
Fitzsimons Redmond

Ready access to technology, coupled with the steep rise in remote and hybrid work, has allowed the lines between work life and home life to become blurred. Many workers will check in on emails and take calls outside of their usual working hours. While flexibility from both employees and employers is particularly appreciated in times of crisis, an expectation to be always available can lead to stress and burn-out for employees.   

A study by Bilge et al. (2020) in Germany showed that almost 60% of pandemic-related remote workers rated stress arising from separating work and personal life as being in the medium and high brackets. Given similar working practices, the results are indicative of the stresses felt by Irish workers.   

Stress and overwork are to be avoided in the workplace. As well as contributing to poor culture, unhappy workers and lost productivity, stress and overwork are risks to be mitigated in terms of being a health and safety issue. They can lead to personal injury actions as well as actions in respect of working time and payment of wages. Employers should take all reasonable steps to ensure their workers (and themselves) are protected. Workers should be encouraged to work only during their contracted hours, and to avoid work-related communications outside of the workday.  

To that end, the code on the Right to Disconnect Code was announced by the Tánaiste on 1st April 2021, with immediate effect. It adds to Ireland’s existing legislation on working time and has three strands which I will explain.  

The right of an employee to not have to routinely perform work outside their normal working hours 

This enhances the existing rights of the employee to be protected from excessive working hours. The Organisation of Working Time Act provides that an employee must not work more than 48 hours per week on average. The code provides that employers should now respect the contracted working hours also, usually 38 or 43 hours per week. 

Performing work includes: 

  • doing any work-related tasks; 

  • being required to be in the workplace; 

  • checking emails; 

  • responding to emails and phone-calls; 

  • communicating in a team group-chat; 

  • logging into the IT infrastructure;  

  • being on-call. 

Outside of working hours, colleagues must simply be regarded as unavailable for work or communications. In practice, this means that workers should be provided with separate devices for work-related communications, and these should be switched off at the end of the day with appropriate voicemails or redirects.  

Unlike the Organisation of Working Time Act, failure to respect the code does not give a specific cause of action, rather it is a factor that may be taken into consideration by the WRC when determining the outcome of any proceedings. If an employer fails to observe the right to disconnect, they will likely find themselves paying greater compensation.  

It is important to note that the code allows some flexibility; on occasion, a worker may work additional hours such as to complete a project or to deal with something unforeseen or may be contacted outside the normal working hours if there is an urgency. They should be given time off in lieu if they have had to perform ad hoc duties outside their working hours and working hours should always be scheduled to ensure proper rest periods.  

The right not to be penalised for refusing to attend to work matters outside of normal working hours 

This is an important right in organisations with an ‘always on’ culture. Employees have the right to refuse to address work matters during their personal time. Regardless of how insignificant the intrusion into personal time, the worker has a right to fail to answer a call or email, and may not be punished in any way.

Penalisation includes dismissal, suspension, giving a worker less consideration for promotion, excess performance management, reducing wages as well as less obvious matters like assigning with greater frequency the tasks which others do not wish to complete or subjecting an employee to negative comments or bullying behaviour 

The duty to respect another person’s right to disconnect  

The code obliges workers to respect the free time of their colleagues. They should not, for example, email or call colleagues outside normal working hours. Pressure should never be put to bear on peers or subordinates to engage in any form of work outside of hours. 

Workers who work irregular hours should send scheduled emails to be received within the working hours of the recipient. Scheduled email allows workers the flexibility to work on their own time-schedule, without intruding into the personal time of their colleagues. 

It is advisable to conduct training on good workplace stress management through courses such as an Office Safety Course or an Online Workplace Stress for Employees Course. 

The duty on employees flows from the code, but it is for employers to codify and facilitate the expected behaviour in their particular workplace. The code recommends that each workplace develops a Right to Disconnect Policy. The will include matters such as automatic out of office messages as a response to out of hours emails, creating a duty not to contact colleagues out of hours, and creating a notification channel in respect of time-management issues and work pressures that might lead to working additional hours. 

The right to disconnect, as with all aspects of workplace wellness, is cultural within organisations. It is important for wellness leadership to come from the top. Employers cannot expect their workers to respect work-life balance if they do not demonstrate such an ethos. Leaders need to be clear that long hours are neither valued nor expected; they need to step in and offer supports if a team-member is struggling to complete their workload within hours. They should lead-by example by setting up their own out-of-hours out-of-office, using scheduled email and not asking for information at the end of a workday. To facilitate a healthy mindset, managers can take an Online Workplace Stress for Management Course. 

Working hours and the right to disconnect go beyond a value and wellness issue; Irish law makes it a legal issue and therefore a risk for all businesses that need to be monitored and mitigated.

 

 

 

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