Code of Practice on Right to Disconnect

Today, 1 April 2021, the Code of Practice for Employers and Employees on the Right to Disconnect (“the Code”) came into effect. The Code was developed by the Workplace Relations Commission following a request by the Tánaiste in November 2020 as part of the Programme for Government to facilitate and support remote working. However, the Code applies to all types of employment, not just employees working or workplaces operating remotely.

The status of the Code

The purpose of the Code is to provide guidance on best practice to employers and employees in relation to the right to disconnect. The Code is not legally binding and failure to comply with the Code is not an offence. The Code is admissible as evidence and its provisions can be taken into account in proceedings in the Workplace Relations Commission, the Labour Court and the civil courts.

What is the right to disconnect?

The right to disconnect is a right to disengage from work outside of an employee’s normal working hours. This includes:

1. A right not to routinely perform work outside of normal working hours (including refraining from engaging in work-related emails, calls or messages); 
2. A right not to be penalised for refusing to attend to work matters outside of normal working hours; and
   
3. The duty to respect another person’s right to disconnect (e.g. by not routinely emailing or calling outside normal working hours).
   

What legal obligations exist for employers? 

The Code provides guidance to assist employers and employees to meet obligations set out in existing legislation. In relation to employers, it confirms the existing obligations to:

1. Provide detailed information to employees on their hours of work (including overtime), in accordance with the Terms of Employment (Information) Act, 1994 – 2014;
2. Ensure that employees are informed of what their normal working hours (daily and weekly) are reasonably expected to be, under the Employment (Miscellaneous Provisions) Act 2018;
3. Ensure that employees take rest periods, in accordance with the Organisation of Working Time Act 1997; 
   
4. Ensure a safe workplace which includes reviewing their risk assessment and, where necessary their safety statement in line with the Safety Health and Welfare at Work Act, 2005 and taking account of the obligation to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk while at work; and
   
5. Not penalise an employee for acting in compliance with any relevant provision or performing any duty or exercising any right under section 27 of the Safety Health and Welfare at Work Act, 2005 (which deals with protection against penalisation under the Act).

Do employees have any obligations under the Code?

Yes. The Code confirms the existing obligation for employees to take reasonable care to protect their safety, health and welfare and the health and safety of co-workers. In addition, the Code identifies an obligation for employees to be “conscious of their work pattern” and “aware of their work-related wellbeing”, taking remedial action if necessary. Employees must also ensure they manage their own working time; co-operate fully with any appropriate mechanism utilised by their employer to record working time (including when working remotely); and notify the employer when they have not availed of a statutory rest period or break to which they were entitled. 

The Code also confirms that employees must also be mindful of the right to disconnect of those with whom they are communicating and goes so far as to provide, by way of example, that employees should not routinely email or call colleagues, customers or clients outside normal working hours. 

What does the Code recommend as Best Practice? 

The Code states that employers should engage proactively with employees and employee representatives as appropriate to develop a Right to Disconnect Policy, in line with business and operational needs. The Code acknowledges that there are situations in which flexibility will continue to be required – in particular it recommends that a Right to Disconnect Policy should: 

“recognise that certain businesses and roles within those businesses do not always operate on a standard hours basis but in a manner responsive to customer needs where flexibility is required to meet the needs of the business, and as agreed in the employee’s terms of employment. In this regard, the Policy should recognise that such flexibility may be beneficial also to employees and a Policy should find the appropriate balance in terms of employer and employee outcomes.”

It is also recommended that a Right to Disconnect Policy should allow for occasional legitimate situations when it may be necessary to contact staff outside of normal working hours. 

In the context of businesses working across multiple time zones, the Code acknowledges that business and operational needs may dictate that there will be situations which require out-of-hours working, but this will depend on the circumstances of each case and, if this is likely to arise, the policy should provide clear guidance around disconnecting and expectations for responding to digital communications globally. 

The Right to Disconnect Policy should recognise that many employees choose and may request to work in a more flexible manner given their work life balance needs, which results in employees proactively requesting to work outside normal working hours. However the boundaries between work and private life should not be comprised.

Where remote or flexible working is in place, it is recommended that employers should consider if their usual method of monitoring specified working hours is suitable for remote and flexible working. 

Training and related communications should reinforce the appropriate behaviours around disconnecting from work outside normal working hours.

The Code introduces a specific duty on Managers to recognise and take action when an employee’s inability or reluctance to disconnect appears to be linked to excessive workload, performance issues, or organisational culture.

The Code also sets out guidance on the tone and sense of urgency in written communications; culture and oversight; and the role of managers in implementing the policy. This includes a suggestion to use measures such as email footers and pop-up messages to remind employees, and customers, that there is no requirement to reply to emails out of hours.

How does an employee raise a concern about the right to disconnect?

The Code notes that, in line with best practice, employers should have both informal and formal mechanisms for addressing employee concerns around the right to disconnect. Depending on the size of the organisation, employers may arrange to deal with such concerns under existing procedures (such as the Grievance Procedure) or incorporate a procedure in their Right to Disconnect Policy.

As an employer, what should I do now to implement this Code?

The publication of the Code serves as a timely reminder for employers to undertake a review of contracts and working practices to ensure that they are complying with obligations under the Organisation of Working Time Act regarding employees’ working hours and rest breaks. In addition, employers should consider putting in place a Right to Disconnect Policy addressing the areas identified, the measures the employer is taking in respect of same, and outlining the obligations on employees. It may also now be a suitable time to update remote working policies to address arrangements for longer term remote working (if applicable), in light of the issues identified in the Code.

Click here to view the Code in full. 

For further information, please contact Lorraine Smyth or Ciara Lennon from the ByrneWallace LLP Employment Law team, or your usual ByrneWallace LLP contact.