9th April 2021
CODE OF PRACTICE ON THE RIGHT TO DISCONNECT
The Workplace Relations Commission has introduced a ‘Code of Practice for Employers and Employees on the
Right to Disconnect’. This reflects the dramatic change in the world of work over recent years, in particular when it comes to technological advances, which means we are now more contactable and accessible than ever before.
The Code of Practice recognises that there are both positive effects, as well as challenges, and recommends employers put in place policies and procedures to help maximise the benefits for both the employee and employer, to ensure there are safe working practices in place and to maintain a mutually beneficial relationship.
WHO DOES THE CODE APPLY TO?
The Code applies to all employees in all types of employment, whether that be remote working, working from a fixed location, at home or mobile.
IS THIS A LEGAL REQUIREMENT?
There is no legal requirement upon the employer to follow a Code of Practice introduced by the Workplace Relations Commission. It is a guide to what would be regarded as best practice and is within their remit of promoting fairness, continuous improvements and maintaining good working relationships.
However, it is important to be aware that failure to follow a Code of Practice, whilst not an offence in itself, is admissible as evidence in any proceedings before a Court, the Labour Court or the Workplace Relations Commission.
In addition, whilst the Code may not be a legal requirement, there is legislation which covers aspects which may be linked, although not explicitly referring to, the right to disconnect. For example;
• The Organisation of Working Time Act states an employer cannot allow an employee to work in excess of 48 hours per week on average, and must keep records of hours worked, including breaks and rest periods to ensure obligation are met under the Act. Working time means any time that the employee is— (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work,
• The same Act also specifies what breaks employees must have which includes between shifts and each week which should be uninterrupted.
• The Safety, Health and Welfare at Work Act 2005 states an employer has a duty to manage and conduct work activities that prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk and to not engage in improper conduct that’s likely to endanger the employee’s safety, health and welfare at work. This includes an obligation to not work hours in excess of the legislation.
• Employment (Miscellaneous) Provisions Act 2018 provides that employees must receive a Statement of Terms detailing the core terms of their employment within the first 5 days of employment. One of the core terms being, hours of work the employer reasonably expects the employee to work in a normal working day and normal working week.
• The Term of Employment Information Act provides similarly, that an employer is to provide an employee with their Terms and Conditions of Employment within 2 months of commencing employment which is to include details on working hours including overtime.
WHAT IS THE RIGHT TO DISCONNECT?
The right to disconnect means; “An employee has 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”.
There are three main elements to the Right to Disconnect;
1) The right to not routinely perform work, outside normal working hours,
2) The right to not be penalised for refusing to attend to work matters outside normal working hours and,
3) The duty to respect another person’s right to disconnect i.e. by not routinely emailing/ calling outside normal working hours.
EMPLOYER AND EMPLOYEE OBLIGATION
In order to create a culture whereby an employee feels they can disconnect, a joint approach from both the employer and employee must be taken.
• Provide detailed information on employees working time,
• Ensure employees are aware of what their normal working hours are reasonably expected to be,
• Ensure employees take their rest periods i.e. 11 consecutive hours rest in any 24 hour period,
• Ensuring a safe workplace, including reviewing risk assessments and, where necessary, the safety statement, taking into account the employers obligations under section 8(2)(b) of the Safety, Health and Welfare at Work Act 2005 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 at work of his or her employees at risk,
• Not penalising an employee for acting in line with any relevant statutory provision.
• Ensure they are made aware of their responsibility to manage their own working time,
• Fully cooperate with any methods used by the employer to record working hours, including when working remotely,
• Be mindful of colleagues, customers/ clients and all other’s right to disconnect i.e. by not routinely emailing/ calling others outside normal working hours;
• Notifying their employer, in writing, of any statutory rest period and/ or breaks which they were unable to receive on a particular occasion, and the reason why,
• Being conscious of their work pattern and aware of their work-related wellbeing, taking remedial action if necessary.
Employees and employers should manage the right to disconnect in a manner that is respectful of the other’s rights. However, there may be situations that arise where an employee does not feel their Right to Disconnect is being respected or their workload is such that they are unable to disconnect at the end of their normal working day. Examples of such may include;
• Being contacted regularly outside normal working hours,
• Being expected to regularly work through lunch break or other breaks or after work e.g. at home,
• Being penalised for not being available outside normal working hours
In such situations, employees should be encouraged to resolve the issue with the person(s) informally in the first instance.
Where the issue is unresolved, the company formal grievance procedure should be utilised. If the matter is addressed through the grievance procedure in the context of the Right to Disconnect and still remains unresolved on completion, the employee may refer it to the WRC under the appropriate legislation.
In light of this new Code, we recommend employers put in place a ‘Right to Disconnect Policy’.
The Policy should be supporting the employee’s wellbeing and Right to Disconnect, while recognising that there will be occasions where legitimate reasons arise when it is necessary to contact others outside of normal working hours and also acknowledging that ‘normal working hours’ can differ across the Company.
It should emphasise that there is a responsibility on the part of, and an expectation of, employees to disconnect from work emails, messages etc. outside normal working hours and during periods of leave.
The obligations of employers and employees should be laid out within the policy, as well as the company’s position when it comes to scheduling and attending meetings, Manager’s responsibilities and how employees can go about raising concerns.
It is important for the implementation of any policy that it reaches and applies to all levels of the company. The Policy must be supported from the top down and must be actioned upon.
The Right to Disconnect Policy should be clearly communicated to all employees, a copy of which should also be provided.
This update is provided by the MSS HR Support Service
FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED
JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690