International Employment Lawyer - 25 March 2021
In January 2021, Tánaiste (deputy prime minister) and Minister for Enterprise, Trade and Employment Leo Varadkar published the Republic of Ireland’s first national remote work strategy, which includes a code of practice on the right to disconnect. But, full details of the code are yet to be revealed.
Niall Pelly, head of GQ|Littler’s Dublin office says, “Until some flesh is put on the bones of this proposal, it is difficult to assess how it will compare to the approach adopted in other jurisdictions." “It is important to point out though, that even on the limited information provided to date, it looks like what has been proposed falls considerably short of what people may expect.
“The right to disconnect conjures up images of employees being able to refuse work after a certain time each day – essentially, a 21st century equivalent of the steam whistle announcing the end of a factory shift. However, if that is what people think has been proposed, then they are mistaken.”
As Pelly explains, rather than introducing new legislation – or amending existing law – the Irish government has directed the Workplace Relations Commission (WRC) to draw up a code of practice on the right to disconnect.
“Because the WRC has no power to create law, this code of practice will necessarily be based on existing legislation and, by itself, will not be capable of direct enforcement by employees. In essence, the code of practice will not be able to go much further than directing or reminding employers to adhere to existing working time legislation on rest breaks, daily rest periods, and weekly working limits.”
For Pelly, employers have always faced issues around employee availability, but the adoption of remote working, exacerbated by the pandemic, has led to many workers feeling pressured to work longer hours either to get ahead of, or just keep up with, their colleagues.
“A right to disconnect is seen as an antidote to an ‘always on’ culture,” says Pelly. “Used correctly, it potentially can provide a route to greater equality of opportunity. For example, if the culture of an organisation is that working late into the evening, every day, is actively discouraged, then there is less pressure on employees to log in at all times, and so less likelihood of an overwhelming gap developing between the hours worked by one employee, who perhaps does not have childcare responsibilities, and another, who does.”
“The imposition of certainty on a mandatory basis generally arises at the expense of flexibility, and this equally applies to the right to disconnect,” says Pelly. “Some employees may prefer to take a few hours out of the standard working day to log on later instead. Some employers may have a pressing need for employees to be available at certain times to service customers in particular time zones.
“Most client-facing roles will have ups and downs in terms of workload, and the capacity of employees to fulfil those requirements within their normal working hours will also vary on a day-to-day basis. It is naïve to assume that a one-size-fits-all approach, imposed at a national level, will work for everyone.”
In referencing that it is “aware of the need to find the right balance”, the Irish government’s remote-working strategy document appears to be alive to this issue. However, it remains to be seen where that balance will eventually be struck by the WRC, or if Ireland will join the ranks of Canada, India, and New York City, which have all seen their right to disconnect legislation stall in recent years.
Read the full article here.