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12
Mar 21

Posted by
Jennifer Patton

Out of Hours Communication: The Right to Disconnect

In line with government health guidance and roadmap for the re-opening of business activities, Employers and Employees alike moved quickly to flexible working arrangements for over the past year. While some Companies have remained in a remote working space, others are introducing a hybrid form of remote and office working.

Since the outbreak of the COVID-19 pandemic, working from home has increased by almost 30% which is expected to remain high or even rise. Research by Eurofound, an agency of the European Union, indicates that people who work from home on a regular basis are more than twice as likely to exceed the maximum of 48 working hours per week, compared to those working in the office. Almost 30% of those working from home reported they work in their free time every day or a number of times a week, compared to less than 5% of office workers.

With the prospect of remote working becoming more normalised, Employers must ensure safety, health and well-being are a priority as a company’s legal duty of care still applies when Employees are working from home. Employers need to be mindful of the employee’s right to disconnect as remote working has the potential to distort the boundaries between work and home spatially.

In August 2019, the Government announced their intention to introduce legislation which would ensure Employees have the right to disconnect and no longer feel the obligation to check work-related emails outside office hours. A Code of Practice on the ‘Right to Disconnect’ has been proposed before the Dáil which if passed will amend some statutory provisions of the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and application of the Safety, Health and Welfare at Work Act, 2005.

Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020

Section 15 of the Organisation of Working Time Act, 1997 is amended through the provision of:

  • the right to disconnect from work related e-mails, texts or calls outside of working hours.
  • implementation of a right to disconnect policy establishing hours to disconnect
  • the production of a report on the right to disconnect detailing ways to:

                  - minimise out of hours contact.
                  - establish a standby allowance.
                  - deliver an overtime payment.
                 - ensure all working time does not exceed 48 hours.

This amendment to the Act will make it an offence for an employee to be reprimanded, punished, or subjected to disciplinary action if they ignore a work-related communication sent outside of normal working hours, unless already agreed under the terms and conditions of a relevant right to disconnect policy.

The responsibility for Health and Safety at work rests with the employer regardless of whether an employee works remotely therefore it is good practice to ensure employees know how to protect themselves from potential injury and ill health during this time and that they understand their health and safety obligations whilst working remotely.

On April 1st 2021, Tánaiste and Minister for Enterprise and Employment Leo Varadkar signed the new code of practice on the right to disconnect meaning the code comes into effect immediately and will be admissible in evidence in proceedings before a court.

 The Code states that the Right to Disconnect Policy should be referenced in an employee’s contract of employment in the same way as any other company policy would. The Code also states that, where appropriate, a company’s Policy should recognise that certain businesses and roles do not always operate on a standard hours basis but in a manner responsive to customer needs where flexibility is required to meet business needs, and as agreed in the employee’s terms of employment. Employers with operations in multiple time zones may consider putting agile working arrangements on a more formalised footing with a view to ensuring balance between the need for clarity in relation to employees’ ‘normal working hours’, and the employer’s operational needs.

It will be important for employers to ensure that the policy is ‘equality proofed’ in order to avoid unintended negative consequences and to ensure that it does not result in employees being directly or indirectly discriminated against on any of the protected grounds under the Employment Equality Acts 1998 - 2015.

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Posted in Bright Contracts News, Employment Law