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On 1 April 2021, the Workplace Relations Commission (the “WRC”) published a new Code of Practice for Employers and Employees on the Right to Disconnect (the “Code”). The Code provides guidance on best practice on the right to disconnect, as Aoife Newton, Head of Employment and Immigration Services, explains below. 

The Code has immediate effect and was developed following a request by the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, as part of a programme by the Government to support and facilitate remote working. 

The Code applies to all forms of employment, including those working remotely. Failure of an employer to follow the Code is not an offence, however, the Code is admissible in evidence in proceedings before the civil courts, Labour Court or the WRC.

The new Right to Disconnect

The Code states that the right to disconnect is an employee’s 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 key elements:

  1. A right not to routinely perform work outside of normal working hours (including refraining from engaging in work-related emails, calls or messages).
  2. A right not to 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).

Implementing the new Code

The main objective of the Code is the creation of a workplace culture in which employees feel they can disconnect from work and work-related devices. It is noted that there are situations where flexibility will be required and that there are occasional legitimate situations where it may be necessary for there to be contact outside of normal working hours. A Right to Disconnect Policy should provide clear guidance around expectations of normal working hours and outline any exceptions.

The Code encourages employers to:

  • Develop a Right to Disconnect Policy through actively engaging with employees (and trade unions), that is reflective of the unique needs of the business and its employees. A sample outline policy is provided in the Code to assist employers with drafting their own policy.
  • Ensure that such a policy is ‘equality proofed’ to make sure that there are no unintended negative consequences for any particular employees who may have unique responsibilities (for example caring responsibilities or those with a disability who may need to avail of more flexibility).
  • Refer to the Right to Disconnect Policy in employment contracts and cross reference this with the employer’s Dignity at Work, E-Communications, Data Protection and Confidentiality policies. The Right to Disconnect should also be discussed during an employee’s induction process.
  • Provide managers with training and support on the right to disconnect so that they can demonstrate clear commitment to the policy through leadership and being active role models.
  • Provide training and support for employees to reinforce the appropriate behaviours around disconnecting from work outside normal working hours.
  • Hold annual reviews to examine the effectiveness of the Right to Disconnect Policy within the organisation (if applicable, in consultation with Trade Unions).
  • Consider the use of email footers and pop-up messages to remind employees, clients and customers, that there is no requirement to reply to emails out of hours and an answer should not be expected. 

Existing legal obligations on employers

The Code is to complement existing legislation and it provides guidance and clarification on the existing current statutory obligations of employers, which include an employer’s obligation to:

  1. Provide detailed information to employees on their hours of work (including overtime).
  2. Ensure that employees are informed of what their normal working hours (daily and weekly) are reasonably expected to be.
  3. Ensure that employees take rest periods in accordance with Working Time legislation.
  4. Ensure a safe workplace, including reviewing risk assessments and safety statements in accordance with Health and Safety legislation.
  5. Refrain from penalising an employee for acting in compliance with any relevant provision or performing any duty or exercising any right under Health and Safety legislation. 

Existing legal obligations on employees

Although there is a significant focus on the obligations of employers, there is also an emphasis on the personal responsibility of employees. Employees are expected to take care to protect their own health, safety and welfare, as well as that of co-workers. Employees should manage their own working time and fully cooperate with any mechanisms their employer has in place for tracking working time, including when working remotely.

They are also asked to be aware of their clients, colleagues and all other peoples’ right to disconnect by not routinely making work-related contact outside of normal working hours. The Code encourages employees to take responsibility for their own work-related wellbeing, including ensuring they take their statutory rest periods and notifying the employer when they have not availed of a statutory rest period to which they were entitled.  

Actions

Employers should consider undertaking a review of their working time policies and contract clauses and consider implementing a Right to Disconnect Policy addressing issues surrounding the right to disconnect through awareness and training where required. 

Get in touch

If you require assistance with inplementing the new Code of Practice on the Right to Disconnect or working time matters, please contact a member of the KPMG Employment Law team. We’d be delighted to hear from you.

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