First published: May 23rd 2023
Last updated: May 23rd 2023

In April 2021, the Workplace Relations Commission (“WRC”) Code of Practice for Employers and Employees on the Right to Disconnect (‘the Code’) came into effect.

Much was made of the Code at the time and many people interpreted the Code as the introduction of a statutory employee right to disconnect.

The Code does not provide employees with any legal rights, however. The aim of the Code is to provide both employers and staff with guidance around an employee’s right to disconnect from work and in particular to disengage from electronic means of communication, like email, phone or other messaging services outside of normal working hours.

What happens if employers don’t follow the guidance in the Code?

Failure to follow the Code is not an offence and does not in itself give rise to any claims.

The Code is admissible in evidence in proceedings before a Court, the Labour Court or the WRC however.

Employers who fail to take account of the Code may therefore have a weaker case in trying to defend any working time-related claims.

What is the Right to Disconnect?

The Code states that the Right to Disconnect is an employee’s right to be able 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.

In brief, the Right to Disconnect has three main elements:

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

The Right to Disconnect has existed for years under Irish employment law

One of the steps that the WRC encourages employers to take in the Code is to ensure that employees take their rest periods, in accordance with the Organisation of Working Time Act 1997.

As the 1997 Act requires employers to provide staff with 11 consecutive hours of daily rest in any 24-hour period, the right to disconnect has already been effectively enshrined in Irish employment law for years.

What do employers need to do to comply with the Code?

To comply with the Code, the key actions for employers include:

• Developing a right to disconnect policy (the Policy) in consultation with staff or their union reps and ensuring the Policy is tailored to your business
• Integrating the policy with grievance and disciplinary procedures to allow either party to take action for breaching the terms of the Policy
• Ensuring management receive training on the practical implications of the Policy
• Letting staff know that they are not expected to remain online outside their normal working hours
• Considering how you keep records of employee working time and introducing some sort of time management system if none is currently in place.

What do Employees need to do under the Code

The Code also sets out employee obligations. Employees should ensure:

• they manage their own working time
• they take reasonable care for their own health and safety and the health and safety of their colleagues
• they co-operate with any mechanisms used to record working time when working remotely
• they are mindful of their colleagues’, clients and everyone’s right to disconnect
• they notify their employer in writing of any statutory rest breaks that they could not take, and
• they remain conscious of their working patterns and work-related wellbeing.

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

The Code anticipates that in certain organisations, there will be occasional legitimate situations when it’s necessary to contact staff outside of normal working hours.

Some of the legitimate scenarios include:

• ascertaining availability for rosters
• filling in at short notice for a sick colleague
• unforeseeable circumstances or where an emergency may arise, and/or
• where business and operational reasons require contact out of normal working hours.

Where business and operational needs dictate that some out-of-hours working by certain employees will be necessary to service the needs of customers/clients or fulfil critical services, this should be agreed in an employee’s contract of employment.

Employers who have operations working across different time zones should also provide clear guidance around disconnecting from work and what the expectations are for responding to digital communications globally.

If employees specifically request to work in a more flexible manner to address their own work life balance needs, these employees may need to work outside normal working hours. Any such employees should be made fully aware of their right to maintain clear boundaries between work and leisure.

Let Peninsula’s HR experts handle your Right to Disconnect Policy

The Right to Disconnect is a widely misunderstood area of employment law in Ireland.

To ensure your business is compliant with any aspect of Irish employment law, speak with one of our experts on 1800 719 216