With the vast increase in homeworking resulting from the COVID-19 crisis, issues of work-life balance are under the microscope this year. This article discusses the legal position in Ireland and beyond, whether a specific 'right to disconnect' is needed and how this could be achieved.
With no definitive end in sight to the COVID-19 crisis, working from home (where that is possible) for large parts of the workforce is set to continue for the foreseeable future. The mass move to homeworking triggered by the pandemic has shone a spotlight on the increasingly blurred boundaries between work and home and reignited the debate on the 'right to disconnect'.
Even after the COVID-19 pandemic passes, its effects will have long-lasting repercussions on the employment landscape. While the 'death of the office' narrative might be a little bit over-dramatic, the pandemic has had a transformative effect on working practices and, in some areas of the economy, has forced a significant cultural shift in mindset. Many workers will want to continue working from home even when their workplace reopens, while others may prefer to split their time between the workplace and their home. Others are eager to get back into their usual workplace.
A recent survey commissioned by the Irish Heart Foundation has estimated that many of us who are working from home are sitting down for an average of two hours and 40 minutes longer per day than when working from our usual place of work. The reasons for this? Maybe it's because: the commute has been reduced to a flight of stairs; your 'canteen' or source of lunch is only in the next room; and you are on back-to-back virtual calls or meetings which you cannot escape.
Work has clearly encroached into people's homes. Even when employers are not actually asking their employees to be present all the time, it is increasingly difficult for employees to switch off or disconnect as they struggle to create boundaries between work and the rest of their lives. The collective experience of these challenges is placing a greater significance on the right to disconnect.
What does the right to disconnect mean?
The right to disconnect is not a new concept. Technology has been blurring the line between work and personal life since long before this pandemic. In recent times, the Irish government has recognised this issue and the broader issue of work-life balance and flexible working as an area of increasing importance across the workforce.
The Department of Business Enterprise and Innovation (DBEI) 2019 report on remote workingnoted that disconnecting from work is an increasingly important issue for employees engaging in remote work. In a national employee survey on remote working that was carried out for the report, 46.7% of respondents cited 'switching off/overwork as the biggest challenge of working remotely'. In addition, in January 2020, the Department of Justice also launched a public consultation on flexible working which is intended to help the government address and consider a number of issues relating to flexible working, including the right to disconnect.
As part of its programme for government (PFG), the Irish government referred to the right to disconnect in the wider context of 'work-life balance' and committed to 'bring forward proposals on a right to disconnect in 2020'. It also said it would consider 'a role for the Workplace Relations Commission in drawing up a code in this area'. See our recent insight on the government's PFG and its effect on employers.
The scope of any right to disconnect and the manner in which it might be implemented is not clear. It would, however, be likely to provide employees with the right to not engage in any work-related activity during private time at home, and the right not to be reprimanded for failing to engage in work at that time.
Is there a right to disconnect in other jurisdictions?
Since 2016, employers in France (regardless of size) must address the right to disconnect for employees in their terms of employment. In 2017, further legislation on the right came into effect which required French employers with more than 50 workers to set out non-working hours during which staff were not supposed to send or answer emails.
In 2018, Spain adopted new legislation providing the right to disconnect during rest periods and holidays. Italy has also addressed the right to disconnect through a 2017 law on smart working. Other jurisdictions have followed suit by introducing new legislation, including Belgium, Canada, India, the Philippines and Portugal.
Is a right to disconnect necessary in Ireland?
The Organisation of Working Time Act 1997 (OWTA) already provides that employers cannot permit employees in Ireland to work more than 48 hours per week on average (except in very limited circumstances). There is no option for employees to opt-out of this rule, like there is in the UK. It also sets out minimum requirements for daily and weekly rest periods for employees and requires employers to monitor and maintain records of working hours to ensure this maximum working week limit and mandatory rest periods are adhered to.
Although Irish law does not explicitly refer to a 'right to disconnect', the law recognises the importance of employers adhering to the working time limits and ensuring employees have adequate rest periods from work. An example of this can be seen in a 2019 case brought under the OWTA before the Irish Labour Court in which the employee, who was a business development executive, was awarded EUR 7,500 in compensation because of her employer's breach of the working time rules. The employee produced copies of emails sent to and from her employer between 17:00 until midnight and before her normal working time. The court accepted that, although the employer did not require her to work beyond her normal working hours, it had effectively permitted her to work in excess of the maximum working hours limits under the OWTA. The employer was aware of the employee's working pattern, had failed to keep proper records of her working hours and had not addressed her working-hour pattern.
While this decision is a helpful example of how the OWTA protects employees' rights, the legislation does not address some of the issues that employees might have in 'switching off' and disconnecting from work outside of their core working hours where this does not breach working-time limits.
Some suggest that the OWTA's protection is also limited because these types of cases are rare and are normally only brought after the employment relationship has terminated. Even before the pandemic, many employees' working hours may have exceeded OWTA limits, notwithstanding the potential liability exposure for their employers. Enacting specific legislation on the right to disconnect is likely to be of limited value unless clear guidance is provided to employers and employees to ensure a broader recognition of the importance of disconnecting from work, in terms of complying with working-time limits and health and safety obligations.
Despite the protection afforded to employees under existing working-time rules and health and safety legislation in Ireland, the current legal framework is inadequate to ensure a genuine right to disconnect. (In reality, work beyond the working-time thresholds often goes unnoticed and is not properly monitored.) It remains to be seen how the Irish government chooses to tackle the issue. Introducing a Code of Practice, or adopting an approach of encouraging employers to implement a right to disconnect policy, may not be enough.
Employers in Ireland may in the meantime decide to follow the lead of employers in other countries (or indeed their own group companies) who have taken a more proactive approach to the right to disconnect. Most notably, in Germany, companies have a history of implementing a right to disconnect through employment policies. Volkswagen implemented a policy in 2011 to stop email servers from sending emails to the mobile phones of employees between 18:00and 07:00. Allianz, Telekom, Bayer and Henkel, all German companies, have similar policies in place to limit the number of work-related digital connections employees have after working hours.
In Ireland, Allied Irish Banks appear to be ahead of the trend by agreeing a right to disconnect policy with the Financial Services Union. The policy reportedly covers areas such as emails, meetings and calls (including virtual ones), and sets guidelines on when people should arrange online meetings to avoid interfering with a worker's personal time. It also emphasises the right of workers to make themselves unavailable during breaks, when they finish work or when they have time off.
The pandemic has shone a light on the impact that working from home can have on mental health and wellbeing and the potential negative, longer-term consequences for employee engagement, productivity and organisational culture. As homeworking seems here to stay, at least for some, it will be increasingly important for employers to take account of these issues as they begin to consider their workforce strategy beyond the pandemic.
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