New Right to Disconnect Code introduced
By Rob Nolan
Tánaiste Leo Varadkar signed the Code of Practice for Employers and Employees on the Right to Disconnect (the Code) on 1st April. The Code came into force with immediate effect.
The stated purpose of this new Code is to provide guidance to employers, employees, and their representatives in relation to the Right to Disconnect.
Why has the Code been introduced?
Over the course of the past 12 months, many employees have shifted to remote working arrangements in response to the pandemic restrictions. With mobile devices issued to staff who are working from home, many employees are struggling to switch off or feel obliged to be online outside work hours.
The Government has developed the National Remote Work Strategy in response to the increasing amount of remote work taking place. This strategy included commitments to develop the Code and introduce a legal right for employees to request remote work later this year.
What is the Right to Disconnect?
The Right to Disconnect gives employees the “right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.”
This means employees can exercise their right not to respond to telephone calls, emails, 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?
Despite the aforementioned key rights set out in the Code, it’s important to note that it doesn’t 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 Workplace Relations Commission (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.
Employers are reminded of 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.
Employers are also reminded of the importance of having an appropriate time management system to record working hours and attendance, and that this extends to their remote workers.
The Code also helpfully reminds employees about their duties under the Safety, Health and Welfare at Work Act, 2005. Employees are reminded of their duties 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
It’s difficult to predict what impact the Code will have. Employees already enjoy a right to take daily rest periods and breaks under the Organisation of Working Time Act. While the Code will raise awareness of the issue, we must wait and see 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. When introduced later this year, it’s thought that this piece of legislation will have a far greater impact on the employment landscape.
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