Co-authors: Deirdre Crowley and Eimear Boyle

The right to disconnect is a proposed statutory right to banish the “always on” culture to the past. Here Deirdre Crowley and Eimear Boyle provide an update on what you can expect the proposed legislation to mean in practice.

Legal Status of the Right to Disconnect in Ireland

A statutory right to disconnect was identified as an issue that needed to be addressed by the Department of Enterprise, Trade and Employment’s (DBEI) 2019 report on Remote Work in Ireland - Future Jobs 2019 in light of the increased remote working arrangements in place, not least to provide employers clear guidance when balancing employees’ right to privacy with the practical aspects of performance measurement and managing working hours.  The concept of a statutory right to disconnect was proposed by Labour in last February’s election and there is also consultation taking place on this at EU level.  Under EU and Irish law there already exists, in theory, a so-called right to disconnect under the rules on working time and rest breaks set out in the Organisation of Working Time Act 1997 (the “1997 Act”).  However, the 1997 Act could not have foreseen the diverse technological working environment we currently enjoy and so, from the perspective of a digital right to disconnect, there are inevitably some practical gaps.

Two private members bills, primarily focusing on making an employee’s right to disconnect a statutory right, have been introduced by separate opposition parties in Ireland, namely the Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020 (“Right to Disconnect Bill”) and Working from Home (Covid-19) Bill 2020 (the “WFH Bill”), which are both currently at the Second Stage before the Dáil.

What does the WFH Bill provide?

There are three key practical implications set out in the WFH Bill, proposed by the Labour Party.

Firstly, it is generally proposed to amend the Terms of Employment (Information) Act 1994 to require employers to provide its policy in respect of employee use of electronic devices to send or receive work-related communications outside the hours of work.

Secondly, the WFH Bill proposes to amend the 1997 Act.  It broadly proposes that employers shall not require an employee to access any work-related electronic communications during the period between an employee’s regular finishing time and the employee’s next starting time of work, as so specified or notified. This, in essence, provides for the employee’s right to disconnect. The WFH Bill provides that any time spent considering and responding to emails during this time will be considered working time for the purposes of the 1997 Act.  Our previous article on this topic set out a brief reminder of the minimum requirements for rest periods, breaks, working hours and annual leave under the 1996 Act, the purpose of which is to protect the safety and health of workers.  By way of brief reminder on an employer’s liability under the 1997 Act, it is no defence for an employer to say that it did not know that the employee was working excessive hours unless the employer had in place some system by which hours of work could be monitored and appropriate corrective action taken if needed.

Thirdly, the WFH Bill, broadly speaking, proposes amendments to the Health, Safety and Welfare at Work Act 2005 (“2005 Act”) that will require employers to provide employees, who have to work from home due to Covid-19 measures, with a workstation and a flat rate payment to meet the additional expenses of working from home.  It also seeks to dis-apply certain provisions of the 2005 Act where the employer meets certain obligations.  It is unlikely, in our view, that this particular proposal will pass in its current form, as any health and safety-related proposals that risk compromising our robust health and safety legislative protections will be subject to intense legislative scrutiny.

What does the Right to Disconnect Bill provide?

This Bill, proposed by Sinn Fein, also seeks to create a legal right to disconnect in Ireland and to place an obligation on employers to have a right to disconnect policy in place.  This Bill also proposes a right for employees not to be penalised if they disregard a work-related communication sent after their normal working hours but it is not clear what sanctions would be imposed on an employer, in the event of penalisation.

Legislative Next Steps?

It is unlikely that either of these Bills will be implemented in their current form, however, this is a topic that is going to be very much in focus for the year ahead.  Indeed, the current Programme for Government also includes a commitment to develop a strategy for remote working and an inter-departmental group has been set up for that purpose.  It is expected that this strategy will include proposals on a network of digital hubs to be built around the country (some of which are in place already), tax and expenses arrangements to facilitate remote working to ensure that the cost is borne fairly and benefits shared, the right to request to work remotely and to have that considered properly and fairly, proposals on the right to disconnect and supports for businesses to make the digital transition.

The DBEI is currently examining the 1997 Act in the context of the right to disconnect, to consider deficiencies in the legislative framework that should be remedied. Further, the Workplace Relations Commission has been asked to examine what can be done through the development of a new code of practice or set of guidelines to ensure that both employers and employees are aware of their existing requirements and entitlements under the 1997 Act.

What should employers do now?

Remote and hybrid working is a new workplace reality and employers can face the employee-relations, health and safety and working time challenges head on by conducting the steps set out in our previous article:

• Set up organisation-wide training on the right to disconnect – we suggest rolling this training out as part of training on time management and time recording generally;
• Conduct training on the optimum use of time recording systems and specifically on the point that the right to disconnect is a mutual one where open channels of communication in relation to discussions regarding workload and time management are encouraged and actively managed;
• Introduce email footers and automatic out of office responses that highlight that employees are not required to respond outside working hours – this is specified in the AIB policy; and
• Manage customer and client’s expectations in respect of receiving responses outside of normal office hours.

We have now arrived at a more flexible working environment, for many employers at a faster pace than anticipated thanks to the Covid-19 pandemic and associated workplace restrictions.  For some workplaces, the past nine months have irreversibly re-structured working life and caring demands and, in light of the need for flexibility a strict disconnection policy may not be the answer.  As we have set out previously and has been illustrated by the current realities, any such policy will need to be a living document, the contents of which will clearly depend on the organisation, its clients, its employees and their needs.

eLearning Training Resource

The Right to Disconnect eLearning Training (Register Your Interest)

Remote and hybrid working is a new workplace reality with employers facing a rise in employee-relations, health and safety and working time challenges as we enter 2021.

Would organisation-wide training on the right to disconnect benefit staff in your organisation?

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