The Right to Disconnect

As a result of the Pandemic, growing numbers of employees have been forced to work from home and now most employers are shocked to discover that a lot of employees do not want to return to the workplace.  Indeed, with property prices rising in counties such as Kerry, Wexford and Waterford it is evident that people are happy to stay at home with their family while still achieving productivity and high results for their employer.  The smart employer is gradually coaxing the employee back by offering a split between working from home and a few days each week in the office.

So how does an employee working from home disconnect?  When the hours of 9 to 5 gradually, or suddenly, become 7a.m. to 11p.m. or when the phone cannot be turned off.  The symbiotic relationship between Employer and Employee becomes entangled with the Employee’s personal life leading to stress, anxiety, and less productivity.  The Government has recognised this difficulty and have published a Code of Practice on the ‘The Right to Disconnect’ as introduced on the 1st of April 2021.  This code has immediate effect and applies to all types of employment.  It was brought in pursuant to S.20(2) of the Workplace Relations Act 2015

The Code itself is not a statutory right but more so a practical guideline for employers and employees to assist in meeting statutory obligations.  Interestingly like other codes the Workplace Relations Commission do not have to enforce it but pursuant to S.20(9) of the Workplace Relations Act 2015 the commission “the question arising in the proceedings shall be taken into account in determining that question”.  Therefore, it appears that the Commission will be influenced by Employers who adhere to the Code in the case of any such complaint put before it.

The Code derives its origins from other Employment Law Legislation mainly the Organisation of Working Time Act 1997 which provides numerous protections amongst which is the mandatory 48 hours average weekly limit.  Similarly, over work is known to be unhealthy and is covered under the Safety, Health and Welfare at Work Act 2005 wherein a employer has a duty to manage and conduct work activities so as not to put the employee’s health and welfare at work at risk.  Indeed, under the Terms of Employment (Information) Act 1994, an employee must receive a written statement of the hours of work reasonably expected by an employer.  So, one can see from the previous legislation that the new Code unifies these provisions and therefore can arguably be enforceable in any complaint made to the WRC.  The Code is balanced towards both employers and employees.  Employees must also manage their own working time and take reasonable care to protect their own health and safety and take remedial action where necessary if their work pattern eats into their personal time.

If the Code is breached, what are the implications?  Firstly, the Employee should attempt to resolve the issue informally in the first instance.  If this does not work, then the Employee should resort to the Grievance procedure as set out in their Contract of Employment.  Finally, if this does not work then the Employee can make a complaint to the WRC under the appropriate legislation and cite the code.

This is a new area for both Employees and Employers, and it remains to be seen how the WRC will interpret the Code.  However, given the unification of previous employment law legislation it seems the Code will be another arsenal in an Employees complaint against an Employer.  Employers need to recognise this and ensure that the correct policies and procedures are put in place in their workplace.   If you are an employer or an employee who is concerned about issues surrounding the right to disconnect, contact our Employment Law Expert Anthony Shields by telephone on 021 239 0620 or by email: Anthony.shields@mdmsolictiors.ie

Leave a Reply