The COVID-19 pandemic saw many employees thrust suddenly into the world of remote working. The line between work and leisure time quickly became blurred for many people. The government stated that official guidance would issue. This has taken some time, but with immediate effect from 1 April 2021, the Workplace Relations Commission’s Code of Practice for Employers and Employees on the Right to Disconnect (the Code) has been signed into law. The Code applies to all types of employment, whether employees are working remotely, in a fixed (office) location, at home or are mobile.

Importantly, like other employment codes of practice, a failure to follow the Code is not an offence in itself. However, the Code can be used in evidence before the Workplace Relations Commission (WRC), the Labour Court, and other forums to illustrate compliance or non-compliance with the Code and support or defend claims under other legislation.

The Right to Disconnect

The Code does not create new law. Instead, it complements and supports employers’ and employees’ rights and obligations under existing legislation, notably working time and health and safety legislation. The Code provides guidance on how employers and employees should navigate a working landscape where, for example, the easy accessibility of emails has led to an ‘always on’ culture in many workplaces.

Under existing employment legislation, employers must provide employees with details in writing of their “normal working hours” within five days of starting their employment. Linked to this, the Code provides that the Right to Disconnect has three main elements: 

• Employees have a right not to be routinely required to work outside of his/her normal working hours (e.g. during lunch, late in the evening or on annual leave); 
• Employees cannot be penalised for refusing to work outside normal working hours; and
• Employees and employers have a duty to respect other employee’s right to disconnect (e.g. not routinely email outside normal working hours).  

The Code recognises that an absolute ban on employees working, or contacting employees, outside their normal working hours is not sustainable and acknowledges that legitimate reasons may occasionally arise where such work or contact is required. However, the Code stresses that this should be the exception rather than the norm.

What Should Employers do now? 

Develop a Right to Disconnect Policy
The Code recommends that employers produce a Right to Disconnect Policy that applies to all their employees.  The Code includes a sample layout for such policy. The employer should develop this policy in consultation with employees (and, where appropriate, trade union or employee representatives). This policy should be linked appropriately with the company’s dignity at work, e-communications, data protection and confidentiality policies. 

The Code provides some detail about what the Right to Disconnect Policy should include. For example, the policy should provide: 

• that employees are expected to “disconnect” or switch off from work outside of their normal working hours;
• that the policy remain flexible to account for occasional legitimate situations where working outside of normal hours may be required or indeed be preferable for an employee (e.g. unforeseeable circumstances, caring responsibilities of an employee, the unique requirements of certain roles, etc.);
• clear guidance on expectations for employees who work or communicate across different time zones, or where the business and operational needs of an employer dictate that some out-of-hours working is required; and
• a method for employees to raise concerns about not being able to disconnect.

Employers should be mindful of their employees’ right to disconnect, not only concerning communications from colleagues, but also in relation to the employer’s customers, clients, contractors etc. 

Deliver Training 
To ensure compliance with the Code and with the company’s Right to Disconnect Policy, employers should consider providing training to employees at all levels in the organisation, both at induction and at regular intervals during employment. Managers should demonstrate a clear commitment to the policy and leadership in this area. Training can include, for example, training on the appropriate tone and conveyance of urgency in written communications. Managers are also expected to recognise an employee’s inability or reluctance to disconnect and, if necessary, take action.

Take Practical Tips 
The Code also provides several practical tips for employers.  For example, it suggests that employers consider using pop-up messages or email footers to remind employees, customers, and clients that there is no requirement to reply outside of regular working hours. 

Existing Obligations for Employers to Bear in Mind 

The Code links in with employers’ and employees’ right and obligations under existing legislation. For example, under the Organisation of Working Time Act 1997 (OWTA), employers must keep adequate records of an employee’s:

• working hours (to ensure the employee is not working more than the maximum 48 hours per week on average);
• rest breaks (to ensure employees are taking adequate breaks within the day); 
• annual leave and public holidays; and 
• daily and weekly rest (to ensure employees have adequate rest periods between working days). 

Employers must ensure that they keep these records for each of their employees.  While employees are obliged to cooperate with their employer in recording the above where requested, the onus of proving the hours worked ultimately lies with the employer. Employers should ensure that they maintain adequate records to defend against any claims for a breach of the OWTA. 

Employers and employees also have responsibilities under the Safety Health and Welfare at Work Act 2005 (the 2005 Act) to ensure a safe workplace for employees.  This includes not requiring employees to work excessive hours or be excessively available. Finally, as mentioned above, employers must provide employees with details of their expected working hours shortly after commencing employment. 

Next Steps 

In addition to being up to date with the new requirements of the Code and producing a Right to Disconnect Policy, employers should also review their existing policies and procedures to ensure they are aligned with both the new obligations under the Code and existing relevant obligations under existing employment legislation. 

Please contact Jeffrey Greene, Therese Chambers or your usual William Fry contact for further advice or assistance.

Contributed by Therese Chambers.