16 Dec Working Time – Right To Disconnect

As we approach the Christmas holiday season, this article briefly reviews the issue of the right to disconnect, which has come to the fore once again, as a result of the unexpected move to remote working for many employees during the Covid 19 Pandemic, and the establishment of a pattern of working, which may remain a standard feature of working life for many going forward.

Whilst remote working has been welcomed by many and has afforded a welcome break from tiresome commuting as well as the flexibility to find a better work life balance, for many others, a home work setting without the normal structures and protocols of the standard workplace has proved problematic in terms of being able to switch off and ensure that that there are boundaries set between working time and private time. And whilst digital rights have been on the agenda for the last number of years, particularly at European level, this new way of working has brought into the spotlight again the right to disconnect, with two private members bills currently at the second stage in the Dail. Firstly, the Working From Home (Covid 19) Bill 2020 (WFH Bill), contains proposals to ensure that employers provide a policy in respect of electronic communication outside of working hours, and that employees will not be required to access electronic communications outside working hours, and furthermore that if they do that this will be counted as working time. The Bill has also proposed that workstations be provided and that a working from home allowance will be payable. A second private bill (Right To Disconnect Bill) similarly proposes a statutory right for employees to disconnect.

Whilst these bills in their current format may not necessarily be enacted, the general principle of the right to disconnect will remain relevant and employers should be considering what measures they need to have in place to ensure that they can deal appropriately with challenges around working time and digital rights, going forward. The former Kepack & Grainne O Hara case in 2018 should also serve as a useful reminder of the consequences of not ensuring that employees are provided with clear guidance on their working time obligations, regardless of any new legislation that may be introduced. This case dealt with breaches of the Organisation of Working Time Act, that arose on foot of excessive hours being worked when the employee was required to send emails between 5:00 pm and midnight, outside of her contracted 40 hours per week, as well as in the morning time before starting work. The employee traveled extensively in a business development role, and then had to deal with email correspondence and system requirements outside of working hours. Whilst the employer argued that the employee should have been able to complete her required duties within her standard hours, if she worked more efficiently, the Labour Court disagreed and said the employer was fully aware by the timing of her emails that the employee was working excessive hours (above the maximum average 48 hours permitted per week), and took no measures to curtail her working time and therefore permitted a number of breaches of the OWTA. The employer also did not maintain proper records of working hours. The employee was awarded €7,500 compensation.

Whilst it is also appreciated that flexibility with working time can be helpful to both parties, particularly with some of the challenges that many employees faced this year with caring and schooling responsibilities at home, non standard out of hours working arrangements must always be mutually agreed and time recorded properly to ensure that the Working Time Act is not being breached. Otherwise, more generally, in light of pending greater regulation in this area, as has already happened in some European countries, some practical measures that can be taken now by employers include:

• Review whether there is a culture of “immediate response” to digital communications, and set/manage expectations from both clients and colleagues/management for reasonable response times,
• Implementation of email responses and footers that indicate responses will be provided in standard working hours; and
• A clear policy on requirements to record working time and the right to disconnect, that is communicated to employees.