Right to Disconnect guidance published

Moira Grassick

April 01 2021

Tánaiste Leo Varadkar has signed the Code of Practice for Employers and Employees on the Right to Disconnect (the Code). The stated aim of the Code is to provide practical guidance and best practice to employers, employees, and their representatives in relation to the Right to Disconnect.

Background

The momentum behind the development of the Code increased over the course of the past year during which a huge number of employees shifted to remote working arrangements. The Government then published its National Remote Work Strategy in January of this year which included commitments to develop the Code and introduce a legal right for employees to request remote work.

Free Download: Employee Right to Request Remote Work: Key Considerations

What is the Right to Disconnect?

The Right to Disconnect allows employees to switch off from work outside of normal working hours. With mobile communications devices so prevalent in the workplace, the Code envisages that employees will exercise their right not to respond immediately to emails, telephone calls, or other messages outside normal working hours.

The three key rights enshrined in the Code are:

  • 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).

Is the Code legally binding?

It’s important to note that the Code does not provide employees with a fully enforceable legal right to disconnect. While the Code comes into effect immediately from April 1st, failure to follow the Code is not in itself an offence.

However, the Code will be admissible as evidence in any proceedings before a Court, the Labour Court, or the WRC. Any provision of the Code which a court deems relevant to any question arising in the proceedings before it will be considered in determining that question.

Employer obligations

The Code reminds employers about their existing legal obligations towards staff under 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) Act 1994 – 2014. The Code also reiterates the importance of employers having an appropriate time management system to record working hours and attendance, and that this obligation extends to remote workers.

Employee obligations

In a welcome addition, the Code also reminds employees about their duties under the Safety, Health and Welfare at Work Act, 2005. In addition, employees are required to:

  • Cooperate fully with any appropriate mechanism utilised by an employer to record working time including when working remotely.
  • Be mindful of their colleagues’, customers’/clients’, and all other people’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).
  • Notify the employer in writing of any statutory rest period or break to which they are entitled to and were not able to avail of on a particular occasion and the reason for not availing of such rest period or break.
  • Be conscious of their work pattern and aware of their work-related wellbeing and taking remedial action if necessary.

Impact of the Code

The true impact of this piece of legislation is difficult to predict. Employees already enjoy a right to disconnect under the Organisation of Working Time Act which is fully enforceable. While the Code will generate a fair amount of publicity, it remains to be seen what difference it will make in practice.

The Tánaiste concluded his announcement by inviting submissions on the proposed introduction of a right to request remote work. It is likely that this piece of legislation will have a far greater impact on the employment landscape later this year.

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