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Ireland’s “shiny” right to disconnect a “masterful” rebranding exercise
12/04/2021
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John VDLD
John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

Heralded as a route to improved work-life balance and more flexible family-friendly working arrangements, especially for workers struggling during the covid-19 pandemic, Ireland’s workforce now has the right to disconnect from work after Tánaiste and Minister for Enterprise, Trade, and Employment Leo Varadkar signed a new code of practice.

The Workplace Relations Commission’s new code gives employees the right not to routinely perform work outside normal working hours; not to respond immediately to emails, telephone calls, or other messages out of normal working hours; and to not be penalised for refusing to work during times they are supposed to be switched off.

“Although much of the impact of the pandemic has been negative, particularly for those who have lost jobs, income, or whose businesses have been closed, it also offers an opportunity to make permanent changes for the better, whether that’s working more from home, having more time with the family, or more flexible working hours,” said Varadkar.

Damien English, the minister for business, employment, and retail, said the code was a positive step in providing practical guidance on the right to disconnect: “It will ensure that both employers and employees are aware of their requirements and entitlements and understand how they apply, especially when it is time to unplug and recharge the batteries by switching off properly from work, especially in a remote working scenario.”

And so, with the stroke of the Tánaiste’s pen, Ireland joins the ranks of France, Italy, Spain, Chile, and Argentina as a country offering its people new protections on when they may refuse work. Or has it?

“As a branding exercise, repackaging existing entitlements with a code of practice that is not directly enforceable, and presenting it as a new, shiny ‘right to disconnect’ is masterful,” says Niall Pelly, head of GQ|Littler’s Dublin office. “However, in terms of legal substance, the code is little more than an opportune reminder to employers and employees to be mindful and respectful of the working time rights of their employees and colleagues.”

As Colleen Cleary, principal and founder of CC Solicitors in Dublin, explains, the code is not primary legislation and is, therefore, not legally binding on employers. It is, however, supplemental to existing legislation and admissible in any complaint regarding breaches of the Organisation of Working Time Act or the Safety Health and Welfare at Work Acts, she says: “Where a complaint has been made and an employer has not implemented the guidance outlined in the code of practice, they will have to explain their reasoning to the Workplace Relations Commission.”

Teams of lawyers would no doubt have locked horns over what precisely ‘normal working hours’ means in any given situation

The fact the code is not directly enforceable means compliance questions will be confined to cases where, Pelly suggests, an employee claims constructive dismissal due to overwork, or alleges breaches of working time legislation. “The code does not vary or reduce the legal proofs that an employee must establish to succeed with such claims – occasionally being directed to work longer hours than normal is unlikely to suffice.”

Issues are also foreseen in the definition of “normal working hours”, as Pelly explains. “The code refers throughout to an employee’s ‘normal working hours’, and it is against these ‘normal’ hours that the right to disconnect is pegged. The code presupposes that all employees have normal working hours, but it is far from clear what is meant by this, particularly in circumstances where employees are increasingly looking for more flexible arrangements outside the traditional working-day model.”

The code defines normal working hours as those agreed in an employee’s terms and conditions of employment, but, as Pelly explains, this ignores the reality that most employment contracts will contain a clause requiring employees to work any additional hours as are necessary to carry out the duties of your role, or some variation thereof.

“Normal working hours in that context envisages and includes working outside the traditional working day,” he says. “If those already are an employee’s normal working hours, then it is difficult to see how an employee can claim an entitlement not to work during them, provided that general working time obligations – such as a weekly working hours limit and rest breaks, etc – are adhered to.”

Ambiguity over the meaning of “normal working time” in a directly enforceable code would have presented a headache to multinationals operating across different time zones, suggests Pelly.

“Teams of lawyers would no doubt have locked horns over what precisely ‘normal working hours’ means in any given situation. However, to have gone down that route would have been a mistake, and it is better that a more flexible balance has been struck – a balance that is based on principles of mutual respect, which allows for flagrant breaches to be punished in the context of claims, such as constructive dismissal, but one in which liability is not triggered by the sort of interactions that are entirely routine in the modern workplace.”

This only really benefits employees who can work remotely. We are perhaps going to see more of a discussion in the future on the ‘Zoom divide’ between workers

For the new code to be truly effective, it will require buy-in from business leaders, says Cleary, adding: “Most employers and business we work with see this as a positive – many employees who can work remotely have worked hard during the pandemic, which is recognised by business; the seismic shift in workplace culture as a result of the pandemic means that both parties have to adapt so there is a win-win situation.”

“The right to disconnect is intrinsically tied up with remote working; all of this is geared towards working more flexibly and, hopefully, in a more healthy way with a better work-life balance," she continues. "I think businesses will need to train their managers as to how to lead their team remotely and develop a culture and policies that support remote working and a right to disconnect. Remember though – this only really benefits employees who can work remotely. We are perhaps going to see more of a discussion in the future on the ‘Zoom divide’ between workers.”

For those employers that have yet to update their internal policies since the code came into force on 1 April, Cleary advises making use of its guidance and templates while keeping in mind that any new company policy document must be drafted with the needs of each individual business in mind, as well as the needs of its employees. “For example, if you are a global company, what times are suitable for holding international meetings in different time zones that don’t impinge on employees’ free time?”

Also, managers should be provided training on the policy as they will be at the front line of implementing it and have significant responsibilities under the code, she adds, which should also be communicated to employees to ensure they play their part, too. “Employees also have obligations under the code. These include compliance with any time management system in place, being mindful of colleagues’ right to disconnect, and notifying the employer of any rest periods that are missed.”

Cleary also advises employers to fully embrace the technology at their disposal: “The use of email signatures, out of office automated messaging, and the ‘delay send’ function are to be repurposed to aid in achieving the right to disconnect. These can be used to communicate working hours to colleagues so they know when, and when not, to email you. The delay send, meanwhile, can be used where someone does want to send emails outside of another person’s working hours, but will make sure they don’t receive them until they are back at work.”

Overall, Ireland's code has been warmly received by business leaders and employees alike, especially in an environment where the importance of worker wellbeing is heightened. Dr Laura Bambrick, social policy officer at the Irish Congress of Trade Unions, said: “When the occasional intrusion on a worker’s personal time to get a project finished or an order filled becomes the norm this becomes a health and safety issue. An overtired worker is a danger to themselves and others.”

“The fact the code has been welcomed by both trade unions and Irish Business and Employers Confederation suggests that it strikes a decent balance,” says Pelly. “It will at least serve to start a conversation about the issue in workplaces, particularly in circumstances where employee burnout is becoming an ever more prevalent issue.”