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Implementing The Code Of Practice On The Right To Disconnect

Introduction

It is well known that the Organisation of Working Time Act 1997 and the Regulations made under that Act are archaic and out of date in respect of the various different working arrangements and access to work that technology has enabled.

The Code of Practice on the Right to Disconnect (the “Code”) which was introduced on 1st April 2021 is meant to limit the availability of employees through technology outside normal hours of work and facilitate meaningful rest periods but unfortunately it continues to work off the archaic 9am-5pm work time model and may act against employers trying to facilitate flexible working hours, especially during Covid-19 remote working.

Why is the Code Relevant?

While a breach of the Code is not in of itself an offence under any law this Code will be admissible in WRC, Labour Court and Civil Court proceedings as evidence. As such where an employer has had proceedings brought against them and these involve issues that relate to the Code, like working hours or stress at work, the compliance or non-compliance with the Code can be used to illustrate the reasonableness/unreasonableness of the employer’s actions.

What does it say?

There are three main principles outlined in the Code:

1) The right of an employee to not routinely perform work outside normal working hours.

2) The right to not be penalised for refusing to attend to work matters outside of normal working hours.

3) The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).

Practically speaking, in many ways this Code and these principles simply restate employers existing obligations, for instance the Terms of Employment (Information) Acts require an employer to prescribe clear expected hours of work, the Organisation of Working Time Act requires an employer to record the times that employee is working and ensure that they get their breaks, rest periods and stay under an average 48 hour week, the Health, Safety and Welfare at Work Acts require an employer to prevent behaviour and practices that put employee health and safety at risk and to complete up to date risk assessments.

This Code looks to encourage employers to review these existing requirements in the context of their employees’ access to work via smart devices as well as the move by many employers to allow flexible working time.

Usefully for employers trying to manage employees working from home, the Code is clear that employees have an obligation to cooperate with any system the employer puts in place to record working time. This is a development from the previous requirement.

Right to Disconnect Policy

The Code requires each workplace to develop in consultation with their staff a Right to Disconnect Policy. At its core this policy is aimed at giving clarity to employees what their normal hours of work are, that they should not be contacted or required to work outside these normal working hours and the occasional circumstances where it is appropriate to contact them outside the normal working hours.

A further aspect for such a policy would be to set out when the employees will be likely to receive emails outside of their normal working hours but where they do not need to respond to them, for instance where they are working across time zones or where a colleague is on flexible working times.

To this end the Code even goes as far to recommend that the policy deals with things like tone and urgency in emails and other communications and suggests employers consider insisting on email inserts when emails are sent outside normal working hours, such as

“I am currently working flexibly so while it suits me to send this email now, I do not expect a response or action outside your own working hours”

The Code is clear that despite all this detail there still ought to be in the policy or some sort of statement regarding the employers support of the employee’s right to disconnect outside their working hours and a process by which employees can raise concerns if this right is not being respected.

Does the Code bring working time laws up to speed?

Unfortunately, no it doesn’t. While there is much to welcome in this Code, after the last year it will already seem out of date to many employers.

Between working from home (whether abroad or in Ireland), schools and childcare stopping and starting, differing access to broadband, the simple fact is that many employees have developed highly individualised hours of work, which many employers have facilitated.

This Code seems to be grounded somewhat in the “old normal” standard working hours and again ignores the developed working schedule and shifts that have been in place for a long time but even more within the last year. Even the suggested email templates would seem a little out of touch, as it only proposes the email inset outside “normal hours” but does not recognise that people’s “normal working hours” differ greatly and therefore such inset should be suggested at all times rather than outside 9am-5pm working day. It is a pity that the Code did not take the opportunity to recognise that there is no longer a “normal working day”.

Takeaways for Employers

The Code is a useful tool and an important yardstick for employers to measure themselves against, in what has been a year of radical change.

In particular, employers should first ensure that all its employees are aware of what their normal working hours are and ensure that any changed working hours during the last year are confirmed in writing, including whether it is temporary or not and whether it is subject to review.  Furthermore, by publishing and implementing a policy on the right to disconnect employers will have an opportunity to engage with their employees on issues that may have been an unknown source of stress and offer clarification in relation to expectations.

It is recommended that the Policy to Disconnect is drafted in a form that works for each company. The Policy and Code needs a buy-in from all levels of employees, including management and the Board of Directors, in order for it be effective. If effective and communicated properly, this policy could result in a more productive and happier workforce.

https://www.workplacerelations.ie/wrc/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-employees-on-the-right-to-disconnect.pdf

Authors – Anne O’Connell & David Murphy

31st March 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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