The Workplace Relations Commission ("WRC") has published a new Code of Practice for Employers and Employees on the Right to Disconnect ("Code").

It is effective immediately and applies to all types of employment.

The Code does not create any new substantive rights for employees or offences for an employer. However, like the WRC's other codes of practice, it is intended to provide guidance to employers and employees. It is admissible as evidence in claims before the WRC and shall be taken into account when determining the issue or dispute before it.

The Code is designed to complement and support the existing rules in place regarding hours of work and to provide assistance to employees who feel pressured to routinely work longer hours than those agreed in their contract of employment.

Crucially, the Code does not strictly require employers to cease all contact with employees outside of their core contractual hours. It is recognised that occasionally legitimate reasons will arise where it is necessary to contact employees outside of normal working hours. The Code also recognises that a flexible approach must be taken to balance competing objectives, such as an employee's need to work flexibly and the needs of the business.

What is the Right to Disconnect?

The Code defines the right to disconnect as an employee's right 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.

The Code recognises three elements of the right to disconnect:

  1. an employee's right to not routinely perform work outside normal working hours;
  2. an employee's right to not be penalised for refusing to attend to work matters outside of normal working hours; and
  3. a duty to respect another person's right to disconnect (for example, by not routinely emailing or calling outside normal working hours).

Employer Obligations Complement Existing Rights

The Code explicitly recognises that its provisions are a support to existing employer obligations, particularly maximum average weekly working hours, minimum daily and weekly rest periods and rest breaks.

A number of existing employer obligations are referenced in the Code, including those contained in the Safety, Health and Welfare at Work Acts 2005 to 2014, the Terms of Employment (Information) Acts 1994 to 2014, the Employment (Miscellaneous Provisions) Act 2018, and the Organisation of Working Time Act 1997.

The Code also lists a number of employee obligations, which are already contained in the Organisation of Working Time Act, 1997 and the Safety, Health and Welfare at Work Acts 2005 to 2014. However, they serve as a helpful reminder that employees also have obligations to manage their own working time, take reasonable care of their safety, health and welfare at work and that of others, to cooperate with their employers' time recording system, and to notify their employer of any missed rest breaks or periods. Employees are also obligated to be mindful of their colleagues' right to disconnect.

A Right to Disconnect Policy

The Code recommends that employers have a right to disconnect policy in place which takes into account the particular needs of the business. The policy should recognise that business and operational needs may dictate that there will be situations which clearly require some out-of-hours working by employees depending on the service being provided, the employee's role, the needs of customers/clients, the unique requirement of critical services, and as agreed in an employee's contract of employment. If the business operates across different time zones, the policy should address this issue.

The important role to be played by the manager is emphasised. Likewise, the tone and style of communications sent outside of normal working hours should be considerate. Email footers can be used outside of normal working hours to remind employees that a response is not required until the resumption of their normal working hours. Emergency communications requiring immediate or prompt response should only be used when genuinely required.

Employees who wish to raise a complaint related to the right to disconnect should raise the matter informally or make a formal complaint under their employer's grievance procedure.

Key Takeaways

  • employers should develop a right to disconnect policy which outlines the employer's and employees' respective obligations, the issue of differing working hours, the employer's expectation for employees working outside of normal working hours, the role of managers and instruction on how to raise concerns relating to the right to disconnect;
  • ensure flexible working, working time, and performance management policies are reviewed to ensure consistency with the right to disconnect;
  • review and update working hours clauses in contracts of employment to outline the employer's expectations regarding working outside of normal working hours and the circumstances in which it will be required depending on the business' needs;
  • employers should be mindful of the delicate balance between employees' right to disconnect and employees' need to work flexibly;
  • out of office email footers, communication clauses and use of the "send later" or "delay delivery" email functions should be encouraged;
  • review existing time recording systems to ensure they are meeting their obligations under the Organisation of Working Time Act, 1997;
  • employee working hours should be periodically reviewed to ensure that employees are availing of adequate rest and not working excessive hours; and
  • training should be provided to employees to remind them of their obligations and to ensure that a consistent message of respecting colleagues' right to disconnect is communicated. Specific training should be provided to managers to ensure that employees are not pressured to routinely work outside of their working hours, or penalised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.