The "Right" to Disconnect: Much Ado About Nothing?
There has been enormous chatter online and in the media about the introduction of the so-called “Right to Disconnect” in Ireland since 1st April 2021, when a new Code of Practice on the subject was introduced. But has the law really changed? Is there now a real, legally enforceable "right" to disconnect? Perhaps not. Employers do, however, need to take some action to protect themselves.
The press release issued by the Government on the introduction of the new "right" to disconnect grandiosely stated that:
"From today, all employees officially have the Right to Disconnect from work and have a better work-life balance, after Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD brought in a new Code of Practice."
That statement was arguably more than a little misleading. No legal “right” as such has been introduced into law. Rather, a new “Code of Practice” has been published by the Workplace Relations Commission (WRC); the State body charged with producing codes of practice.
Codes of Practice are not legally binding and do not have the same legal status as legislation or statutory instruments, although there is a statutory instrument that classifies the document as a “Code of Practice”. Rather, Codes of Practice are documents published by the WRC that indicate what is expected, but not legally required, of good employers in relation to such issues as grievance and disciplinary procedures, bullying at work, access to part-time work and so on. The Codes can be problematic in that they do not have the status of legislation and are not drafted or worded as tightly as statutes. Sometimes, they arguably mis-state or conflict with existing law.
Codes of Practice can, however, become important in the context of claims brought under employment legislation before the WRC, Labour Court or even the civil courts. If, for example, an employer has failed to follow good practice as set out in a Code, then that can be taken into account by the WRC or a court when deciding a case.
For that reason, it is worthwhile for employers to be familiar with Codes of Practice, reflect their content in company policies and try to abide by them where possible.
The Code of Practice on the "Right" to Disconnect essentially provides for:
a “right” on the part of employees to not be required or expected to routinely perform work outside of normal working hours;
a “right” to not be penalised for refusing to attend to work matters outside of normal working hours; and
a “duty” to respect another person’s “right” to disconnect (by, for example, not routinely calling or emailing outside of normal working hours).
It is difficult to regard any of this as being new or as constituting something other than an unenforceable restatement of existing legal principles. From an employer’s perspective, however, it is worth noting that the Code expects them to develop a “Right to Disconnect” policy after engaging with employee representatives. A template policy is set out in the Code.
Given that Codes of Practice can be taken into account or consideration when cases are being decided, it makes sense for employers in Ireland to now take the following steps at a minimum:
Arrange to meet with employee representatives to discuss developing a "Right to Disconnect" policy;
Use the template in the Code of Practice as a starting point or base-line in terms of drafting the content of that policy;
Adopt the policy as soon as possible and communicate it to all employees;
Include appropriate references to the policy when next amending standard employment contracts and employee handbooks;
Cover the policy in induction and other training (particularly in training materials); and
Add a line into email footers reminding recipients that responses to emails are not required or expected outside of normal working hours.
Our employment law team will be happy to assist clients requiring further advice or information.