The Government brought into effect the Workplace Relations Commission’s Code of Practice for Employers and Employees on the Right to Disconnect (the Code) on 1 April 2021. The Code was developed to underpin the Government’s commitment to facilitate and support remote and flexible working. The Code applies to all employees irrespective of where they work, be that office, home or other remote location, or their working pattern, either core, shift or flexible hours.

What is the right to disconnect?

The right to disconnect has three main elements:

1. The right of an employee to not routinely perform work outside of their normal working hours

2. The right of an employee to not be penalised for refusing to attend to work matters outside of their normal working hours, and

3. The duty of an employer and employee to respect another person’s right to disconnect

Key features of the Code for employers include to:

• Engage with employees or their trade union to develop a right to disconnect policy (the Policy) that is customised to the business
• Ensure that the Policy is fully integrated into all company policies and procedures. An employee’s contract should reference the Policy, though we advise it should be stipulated as not having contractual effect. The company’s internal grievance procedure should be utilised by employees for any concerns they have regarding their right to disconnect not being respected, if the concerns have not been resolved informally. Employees can make a complaint externally to the Workplace Relations Commission
• Provide training to managers on the Policy and the right to disconnect so that they can play an active role in implementing the Policy and demonstrate a commitment to the Policy
• Provide training to employees around the appropriate behaviours for disconnecting from work outside of their normal working hours
• Introduce a time management system to record working time and attendance
• Consider the use of email footers to remind other employees, customers, suppliers etc. that there is no requirement on employees to reply to emails out of hours and that an immediate reply should not be expected

The Code sets out guidance for employers and employees regarding compliance with employment legislation and the right to disconnect. Failure to follow the Code is not an offence in itself, however the Code is admissible in evidence when relevant to any question arising in proceedings. As such, employers should not ignore the Code as it may have legal repercussions for them in any proceedings brought against them.

Employees’ obligations

Employees also have obligations under the Code. They must manage their own working time, cooperate with any recording of working time and notify their employer when they have not availed of a statutory rest period.

Employees must also be mindful of the right to disconnect of those with whom they are communicating. They should not routinely call or email others outside of normal working hours.

Can employees ever work outside of their ‘normal working hours’?

The Code does not provide a rigid set of procedures regarding the right to disconnect as it recognises that all businesses have their own needs. Instead, it is the employer’s obligation to engage with their staff and/or staff representatives to create a Policy.

The Code recognises that some businesses work across different time zones and international travel may result in colleagues communicating outside of normal working hours. A company’s Policy should state that occasionally there will be legitimate reasons when it will be necessary to contact staff outside of normal working hours, including but not limited to: in emergency situations, for operational reasons that require contact out of normal working hours, and when requesting to fill in for somebody who is sick.

The Code acknowledges that employees may choose to work in a more flexible manner and often outside of normal working hours - company policies should reflect this. Even where an employee is working flexibly, the Code cautions that the right to maintain boundaries between work and leisure should not be compromised. Employers should also note that if flexible or remote working is in place, they should consider if their usual method for monitoring working hours suffices.

Key takeaway for employers

It is clear that a central concept of the Code is that of ‘normal working hours’. Employers and employees must be clear around what constitutes an employee’s normal working hours. These normal working hours should not exceed the maximum weekly limits as set out in the Organisation of Working Time Act 1997. They must be structured in such a way that statutory rest breaks are observed. In addition, the hours actually worked must be recorded so that an employer is in a position to demonstrate, if called on to do so, that an employee has not been routinely required to work outside of their normal working hours.

If you have any queries please contact Elizabeth Ryan, Avril Daly or any other member of our Employment Law & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.