The Workplace Relations Commission (“WRC”) has developed a Code of Practice for Employers and Employees on the Right to Disconnect (the “Code”), which came into force on 1 April 2021.  The Code will apply to employees who work remotely, in the office or another fixed location or at home.

Section 20(2) provides a legislative basis for the WRC to create Codes of Practice which are written guidelines agreed through a consultation process.  The Codes of Practice set out best practice for both employers and employees to allow compliance with employment related legislation.  This Code follows on from a recent Code of Practice developed in respect of addressing bullying and harassment in the workplace.

So what do employers need to know about the Right to Disconnect?  Here are some of the common questions from employers below.

What is the Right to Disconnect? 

The Right to Disconnect is described in the Code as “an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.”

This is said to have three main elements to it:

1. The right of an employee to not have to routinely work outside normal working hours;
2. The right to not be penalised for refusing to attend to work matters outside of normal working hours; and
3. The duty to respect another employee’s right to disconnect.

What if the Employer does not follow the Code?

A breach of the Code by an employer would not of itself amount to an offence.  However, if the employer were to be before the WRC, the Labour Court or a Court then the Code would be admissible in evidence.  In short, if there were a claim before the WRC which related to this Code and the employer did not follow it, then this would be taken into consideration by the body adjudicating on it – and a failure to follow the Code would not be viewed favourably.

It is also important to remember that this Code is designed to (amongst other things) complement and support rights and duties which already exist under employment legislation, such as the Organisation of Working Time Act 1997, the Safety, Health and Welfare at Work Act 2005, the Employment (Miscellaneous Provisions) Act 2018 and the Terms of Employment (Information) Acts 1994-2014.

What should be in a Right to Disconnect Policy?

The Code suggests that best practice will be to engage with employees and their trade union representatives/employee representatives to agree on a Right to Disconnect Policy which takes account of the particular needs of the business and the workforce.

Such a policy should outline the following:

• that the policy is there to support the employee’s Right to Disconnect as opposed to creating restrictions around communications and that occasionally there will be situations where it will be legitimate to contact employees out of normal working hours;
• that flexibility may be required for certain businesses and roles for those businesses who do not operate on a standard working hours basis;
• that the policy is aimed at all levels of the business from the most junior to most senior members of staff; and
• the policy should be reviewed from an equality perspective to ensure it does not directly or indirectly discriminate against certain employees.

The Code provides a sample policy with some possible clauses which should be included such as:

• Introduction and purpose of the policy;
• Obligations on employers and employees;
• The role of managers;
• Working hours;
• Communications and meetings; and
• Raising concerns.

What if an employee raises an issue about their Right to Disconnect? 

The Code provides guidance as to how an employee should raise their concerns in situations such as being contacted frequently outside of working hours or during break times or where an employee considers that they are being penalised or treated less favourably than those who stay connected out of hours.

It suggests that best practice will be to try to deal with the problem informally.  It might be the case that the employee would prefer to speak with a manager or HR person initially where they find it difficult to raise the issue on their own.  The Code also suggests that in larger businesses with a dedicated HR unit, that there be a specific contact to deal with issues which arise under the Policy.

It might be the case that employers tie the Right to Disconnect Policy in with the Grievance Policy and so employees would use this route should the matter not be resolved informally.

Legal Island Training Resources

Legal Island has just launched a brand-new Right to Disconnect eLearning course in partnership with Ronan Daly Jermyn (RDJ). The provision of this training for your staff will enable your organisation to act in compliance with the Code, help reinforce the appropriate behaviours around disconnecting from work outside normal working hours and create a culture of good work/life balance.

Engagement and training of managers and staff on the "Right to Disconnect" is a key feature of the Code. Employers should provide training to all staff on commencement, together with regular refresher updates throughout their employment.

Click here to view more information on this course