In an age where an “always on” culture is now the established norm, recognition of an employee’s right to disconnect is steadily growing traction across the globe. Ireland is no exception.

In this article, Deirdre Crowley and Rachel Kenny, Matheson, look at the fine line between facilitating requests for access to more flexible working hours and staying on the right side of working time obligations. Lessons learned from the recent Kepak case dealing with these issues is considered and an overview of the legal steps being taken by Minister Humphries in elevating the right to disconnect to a statutory footing are examined. Finally, the take home message is that compliance in this area depends on the mutual acceptance of responsibility by both employers and employees alike to record working time, to consider flexible working arrangements, to appropriately monitor workload and productivity so that employees can truly disconnect and get the job done.

Legal Status of the Right to Disconnect in Ireland ⚓︎

In August 2019, the Minister for Business, Enterprise and Innovation, Heather Humphries, stated that her department intends to explore the introduction of legislation putting the right to disconnect on a statutory footing.

The intention to move the right to disconnect to a statutory footing in Ireland echoes developments at EU level to enhance workers’ rights to greater flexibility and leave entitlements.

The EU Directive on Work-Life Balance for parents and carers was adopted on 13 June 2019.  As Ireland is already ahead of the EU curve in relation to parental and paternity leave, the most significant impact of the Directive from an Irish perspective will be the introduction of a legal right for parents and carers to request more flexible working hours.

The Right to Disconnect in some other EU jurisdictions ⚓︎

France was at the forefront of European legislative reform in this area when it passed the “El Khomri” law on 1 January 2017.  Employers in France with over 50 employees are obliged to set up fixed time periods when staff are not to send or respond to emails. The terms are required to be either negotiated with unions or unilaterally imposed.

Italy has also followed suit by passing legislation in respect of the right to disconnect in 2017 [Senate Act no 2233-B]. In Spain, the Data Protection and Digital Rights Act 2018 requires employers to establish internal policies regulating the right to disconnect after work hours.

The Court of Appeal in Luxembourg has also recently recognised the right to not be disturbed or in other words to disconnect and held that a manager of restaurant, despite his position, should not have been contacted while he was on annual leave.[1]

Irish case law dealing with the right to disconnect - Kepak ⚓︎

The “right to disconnect” featured strongly in the decision of the Labour Court in Kepak Convenience Food Unlimited Company v Grainne O’Hara[2]. 

Key facts in the Kepak case:

• The employee was business development executive who spent a considerable amount of time travelling between customers’ sites. The employer operated a computerised reporting system on which the employee was obliged to record time worked.
• The employee alleged the volume of work she was expected to carry out together with the reporting requirements were in excess of the maximum 48 hours set out by the OWTA and that she generally worked close to 60 hours per week.  As part her complaint, she submitted emails she had sent to her employer before and after her normal start and finish time ranging from between 5pm to midnight in most cases.  In addition, she submitted emails sent by her employer before her normal working hours.
• The employer argued that the work undertaken by the employee was the same as that of other employees, none of whom worked in excess of the 48 hours per week maximum and that the employee could have comfortably completed her work within her contracted 40 hours.  The employer further argued that the employee had been taught a more efficient method of carry out her tasks, which she chose not to use.
• The Labour Court found in favour of the employee and awarded her €7,500.  It held that
  • the employer was aware through the employee’s operation of its software and through the emails she sent of the excessive hours she was working
  • the employer took no steps to curtail the excessive working hours or to keep proper records, and therefore “permitted” her to work in excess of the statutory minimum in breach of sections 15 and 24 of the Organisation of Working Time Act 1997 (OWTA).

Recap on working time obligations ⚓︎

The OWTA sets down the minimum requirements for rest periods, breaks, working hours and annual leave.  The purpose of the OWTA, which derives from the European Working Time Directive[3] is to protect the safety and health of workers.

Under the OWTA, an employer must not permit an employee to work more than an average of 48 hours per week, which for most employees is calculated over a four month reference period.

The Labour Court in IBM Ireland v Michelle Svoboda[4]  made it clear that the OWTA imposes a form of strict liability on employers to be aware of hours worked by an employee. 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.

In addition, an employer must, with some exceptions:

• ensure that an employee has a daily rest period of at least 11 hours in each period of 24 hours the employee works for the employer (Section 11 of OWTA);
• provide an employee with a rest break of at least 15 minutes after 4.5 hours of work or of at least 30 minutes after 6 hours of work, which may include the first 15 minutes break (Section of 12 OWTA); and
• a weekly rest period in each period of 7 days of at last 24 consecutive hours, which in most circumstances must preceded by the 11 hours daily rest period referred to above (Section 13 of OWTA).

Obligation to keep records ⚓︎

An employer has a statutory obligation to keep records of employees’ working time, in accordance with the OWTA and Organisation of Working Time (Records) Regulations (Prescribed Form and Exemptions) 2001 (the “2001 Regulations”).  In accordance with the 2001 Regulations, where there are no clocking in facilities, the days and hours worked in each week by each employee must be manually kept by the employer (either in the template form set out in the Schedule to the 2001 Regulations (Form OWT 1) or in a form substantially similar).

An employer must also keep a record of rest breaks taken by employees, unless it has, electronic record-keeping facilities such as flexi-time or clocking-in facilities; or has manual record keeping facilities in accordance with Form OWT 1. Each employee in writing of the rest periods and breaks the employee is entitled to pursuant to the OWTA and has put in place a procedure and given each employee notice of it, by which an employee may notify the employer in writing that they were unable to take their rest break.  An employer must also keep a record of having notified employees of their right to rest breaks and of having notified each employee of the notification procedure.

Whilst, there is no specific claim an employee can bring against an employer for a failure to maintain working records, if an employer does not comply with keeping these records, where, for example, an employee brings a claim alleging excessive working hours contrary to the OWTA and / or a personal injury action arising from work-related stress, it will be very difficult, if not impossible, for the employer to defend successfully any such claim in the absence of specific documentary evidence to the contrary.  If a breach of the OWTA is found to have occurred, then an employee may be awarded up to two years’ gross remuneration as compensation.  However, unless the particular breach is very serious, it would be unlikely that the maximum level of compensation would be awarded.  Where an employer fails to retain records and a claim is brought for breach of the OWTA by an employee, a rebuttable presumption of non-compliance arises, which in practice makes the claim even harder to defend.

Working time records are also routinely checked by the Workplace Relations Inspectorate as part of inspections.

What should employers do now? ⚓︎

• 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
• Training on the optimum use of time recording systems and training specifically on the point that the duty 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 that highlight that employees are not required to respond outside working hours;
• Managing client’s expectations in respect of receiving responses outside of normal office hours; and

As we move towards a more flexible working approach, with many employers allowing employees to choose their own working hours by leaving work early and logging back on in the evening to facilitate family demands, a strict disconnection policy may not be the answer.  The policy will need to be living document, the contents of which will clearly depend on the organisation, its clients, its employees and their needs. A greater focus on optimising the use of technology to record time and less of a focus on when work is done will keep employers on the right side of compliance in this area. Current indications are that the right to disconnect will be elevated to a statutory right in Ireland in 2020.

Please contact Deirdre Crowley or Rachel Kenny with any queries.

This article is commentary only and does not constitute legal advice.  Please consult your legal advisors prior to acting on any issue commented on in this article.