Public Consultation on WRC Code of Practice on "Right to Disconnect"

There has been a lot of talk about whether employees have should have a "right to disconnect". Such considerations have escalated with the pandemic lockdown with so many employees working from home, although the issue existed pre-Covid.

 
In any event, the matter is currently very much in vogue and is particularly relevant right now due to some employers' difficulty in accurately recording employee home working hours.
 
With that in mind, the Workplace Relations Commission (WRC) has been tasked by the Department of Enterprise, Trade and Employment with conducting a public consultation on workers' ‘’Right to Disconnect’’ with a view to ultimately drafting a Code of Practice . It is envisaged that the Code will set out guidance for employees and employers on best practice for employee disengagement outside normal working hours. This is part of a broader government policy to promote remote working and a healthy work-life balance generally.
 
While it makes good press, some employers might wonder whether this is just yet another form of regulation of the employment relationship and another standard by which they will be judged.
 
A Code of Practice is not "hard law" and is not the same thing as binding legislation. However  it  can still have significant persuasive effect and failure to observe a Code of Practice can be admissible in evidence in cases before the WRC. An adverse inference can sometimes be drawn by a WRC Adjudicator (or Labour Court on appeal) if an employer fails to apply a Code of Practice.
 
Existing examples include the Code of Practice on Access to Part-Time Work (which may be relevant in relation to part-time work discrimination claims) and the Code of Practice on Grievance and Disciplinary Procedures (sometimes cited in unfair dismissal claims in relation to fair procedures).
 
One of the reasons why a Code of Practice and not a statutory provision is being introduced is perhaps because working time legislation (the Organisation of Working Time Act 1997 – "OWTA") already includes specific rules on working hours, rest periods and rest breaks. These statutory rules arguably already involve a right to stop working or to "disconnect".
 
Employees can take statutory claims under the OWTA and, while such stand-alone claims are arguably not very common, there have been some interesting examples. The most notable of these may be the Kepak Labour Court case from 2018 (WTC/18/18), which is sometimes colloquially referred to as a "right to disconnect" case. Briefly, that case involved an employee who claimed that she was expected to work in excess of the 48 hour statutory maximum period imposed by the OWTA. The Labour Court focused on the fact that the respondent employer failed to keep a proper record of the employee's working hours. The Court also noted that the evidence adduced by the employer did not address the question as to whether the employee worked excessive hours in the relevant period. It ultimately awarded €7,500 to the employee.
 
There are some examples of Right to Disconnect policies voluntarily adopted by Irish employers such as the AIB Right to Disconnect Policy entered into with the Financial Services Union which notes employees’ rights to make themselves unavailable during breaks, when they are finished work for the day or when they are on leave.
 
Further afield, while there is no EU legal framework directly defining and regulating any right to disconnect, it is a well-known part of French employment law.
 
In Germany, employers such as Volkswagen reputedly set its internal email servers to hold emails to individual employee email accounts between 6.15 pm and 7am and Daimler AG has an optional email feature entitled "Mail on Holiday" which can automatically delete received emails with an auto reply where the recipient employee is on annual leave.
 
The WRC invites submissions by 22 January 2021 for consideration in advance of drafting its new Code of Practice. Such submissions, marked ‘‘Right to Disconnect’’ should be sent to finbarr.kiely@workplacerelations.ie. 

Written by Barry Walsh.