The Right to Disconnect – new Code of Practice

The Tánaiste Leo Varadkar has today signed a new Code of Practice on the “Right to Disconnect”.

The Right to Disconnect gives employees the right to switch off from work outside of normal working hours, including the right to not respond immediately to emails, telephone calls or other messages. In this article, Emily Sexton, Partner, Employment Law Team gives an overview of the new Code of Practice.

There are three rights enshrined in the Code which comes into effect today:

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

The purpose of the Code is to allow flexibility and strike a better work-life balance.

The Code of Practice comes into effect immediately.   It applies to all types of employment and sectors.

The law already gives certain entitlements to employees which are relevant to the Code:

• Maximum weekly working hours and breaks under the Organisation of Working Time Act.
• Annual leave and public holiday entitlements under the Organisation of Working Time Act.
• Under Safety, Health and Welfare at Work Act, the Employer must manage 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
• Under the same Act, Employees have an obligation to take reasonable care to protect their safety, health and welfare at work and not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person
• An employee’s usual working hours must be set out in a statement of terms and conditions on commencement of employment

Accordingly, the rights and obligations underpinning the Code are already set out in law for the most part, but are now collectively forming a “right to disconnect”.

In relation to working hours, breaks etc., in general the duty to ensure compliance is on the employer and not the employee. Whilst the Code recognises the onus in this regard is on employers, it also provides that an employee is required to take individual responsibility also in relation to these matters.

In that regard, the Code places an obligation on employees to be mindful of their work pattern, to be aware of their work-related wellbeing and for the employee to take remedial action if necessary.   This obligation on employees is not provided for in the Organisation of Working Time Act, although the provisions of the Safety, Health and Welfare at Work Act would suggest that for an employee to work excessive hours such as to put their own health and welfare (or that of others) at risk would not be in accordance with the employee’s obligations under that Act.

The Code recognises that due to the availability of digital communication platforms and easily accessible technology, it has become habitual for some to send or check emails or messages etc. outside of usual working hours.

The Code of Practice suggests that employers and employees engage and work together to develop appropriate policies in recognition of the right to disconnect.

The Code provides that a workplace Right to Disconnect Policy should emphasise that there is an expectation that staff disconnect from work emails, messages, etc., outside of their normal working hours and during annual leave.   However, it does also recognise that there are occasionally legitimate reasons when out of hours communication is necessary.

The Code advises that any Policy should recognise that many employees choose and may request to work in a more flexible manner given their work life balance needs, however, this should not negate he right to be able to maintain clear boundaries in terms of work/life.

The Code is available here.

A failure to follow the Code prepared is not an offence but if a complaint is made by an employee, the Code shall be admissible in evidence and any provision of the Code which is relevant to any question arising in the proceedings shall be taken into account in determining that question.

The Code is part of the Government’s Remote Working Strategy.  Other matters under consideration include introducing a possible right to request remote working and a public consultation on that is currently underway.

Read our recent article referencing the Remote Working Strategy here.