THE RIGHT TO DISCONNECT. A FUTURE LAW - OR WISHFUL THINKING?

THE RIGHT TO DISCONNECT. A FUTURE LAW - OR WISHFUL THINKING?

Covid changed our lives in so many ways; both good and bad. Working more flexibly, remotely, from home is now an established norm.

Whilst that has brought with it countless benefits; no hours lost or money spent on commuting,less harm to the planet, flexibility around childcare and school runs to name but a few, as with all things it has its downsides too and a major one is that rather than make the work/ life balance better it has blurred the line between the two. In essence, there is no cut off point at which you leave the office and, therefore, leave work behind. At what point is it acceptable to disconnect? To not answer the phone or respond to emails? Rather than work less, a lot of people working from home just don’t know how or when to stop. Add into that the fact that their lives are probably becoming more sedentary and overall there has been higher levels of sickness being reported.

In order to try and counteract this, when in opposition the Labour Party pledged in their Green Paper in 2021 and then in their Plan To Make Work Pay, to introduce the right of an employee to switch off, to disconnect from their work outside of their agreed working hours and for an employer not to be allowed to contact them. As yet, nothing further has happened and it remains to be seen whether it will be included in the Employment Rights Bill.

This right to disconnect already exists in other European countries such as Belgium and Ireland. In Ireland, it is not a law but a code of practice which is not, therefore, legally binding and does not carry any set penalties if breached.

We spoke to Maura Connolly, a partner at Addleshaw Goddard LLP and Head of the Employment Group in Ireland, to see whether and how the Code of Practice has impacted thus far.

Maura explains how the said code of good practice came from an initiative from the Workplace Relations Commission which is, effectively, the equivalent of the Employment Tribunal in the UK. It also has a role in helping the Government put in place new laws and statutory instruments that are relevant to the working environment.

“The Commission, in consultation with various sectors and representatives from employers and trade unions, drafted a document on the right to disconnect. But it doesn’t go as far as to create an actual legal, standalone right. It is a part of the overall obligations that arise under Safety, Health and Welfare at work or under Working Time legislation. The Code indicates that employers should have in place a policy which allows employees to switch off and not be available outside working hours. Where it falls short, in order to bring a claim, you have to bring it under a different piece of legislation. You would have to assert that the employer had breached the Working Time legislation and evidence of this would be that they did not comply with the Code of Good Practice on the right to disconnect.”

Maura says she has not seen any cases going through the courts thus far, but her expectation is that this would be part of a different claim, such as one for personal injury due to work related stress or in relation to routinely working excessive hours.

“This is one of those things that attracted much media interest but in terms of actually finding its way into a legal claim just has not happened.”

The Code has been in play since 31st March 2021 and whilst it has had little impact, it has, nonetheless influenced policy for employers. Unless it becomes law in the UK, it is unlikely that this code will become more legally binding in Ireland.

“The Government in Ireland is very conscious of the multinational sector which emphasises flexibility in the workplace. The idea of being able to service your clients across multi jurisdictional locations is embedded with many of the tech companies and, if there starts to be reductions in the workforce, the Government would be wary of imposing more rights that would be contradictory to the concept of being available for clients irrespective of their time zones.”

One piece of legislation in Ireland that has had an impact in relation to peoples’ working time came in 2023 which provides for a right for employees to request remote and / or more flexible working. This piece of legislation, called The Work Life Balance and Miscellaneous Provisions Act 2023, captured the imagination and has led to many cases already.

Even this, though, has its shortcomings. It doesn’t actually give people the right to actually work remotely or more flexibly - merely the right to ask for it. It puts an obligation on the employer to reasonably, objectively and fairly consider that request. But there are a lot of provisions in the legislation which allow the employer to say no. In most cases that have been heard, the employer's refusal has been upheld. The legislation makes it clear that the role of the Workplace Relations Commission (who make the decision) is not to assess the merits of the request or the reason for the refusal but to examine the process adopted and look at its fairness but they cannot put themselves in the shoes of either the employer or the employee. If the employer appears to have given a fair evaluation, that is good enough. There is a sense that in time trade unions might feel this is not sufficient and want a more meaty right.

“What I find interesting about this particular piece of legislation is that the right to request flexible working can now be linked to carer responsibilities which include elderly parents as opposed to what was, traditionally, limited to children. Potentially this will increase the number of people requesting such a right as, before, it was mainly women trying to put in arrangements for children. The employer legally must engage with the employee within four weeks of the request being submitted and there is a set of criteria in place by which the employer’s decision can be measured. This is a great step towards balancing family responsibilities and work.”

Another item that was included in this legislation was the concept of domestic violence leave. Employees can avail of up to five days paid leave in any 12 monthly periods when they are a victim of domestic violence and disclose this to their employer.

“This is a challenge for the employee - who may not want to disclose such personal information - but it does put in place a process

Maura personally feels switching off is beneficial for the mental health of employees and recognises that the downside of remote working is that they cannot get away from their workplace or mobile phone so they are always switched on. Nonetheless she recognises the dynamic of a client service sector where you have to balance giving the client what they require with looking after the well-being of your staff.

Not an easy problem to solve. Whilst Ireland has been at the forefront of attempting to redress imbalances, it is not a system without flaws. We wait to see what our new Government here in the UK comes up with. It is an issue that needs to be addressed - and, hopefully, they will not switch off from doing so. ■

“Switching off is beneficial for the mental health of employees”