The right of employees to disconnect from work out-of-hours has garnered a lot of attention recently in the media and beyond, with Australia implementing a law granting the right and the UK set to introduce a right to ‘switch off.’
The reaction in the UK and Australia to this news echoes the very differing reactions from employers and employees in Ireland in 2021 when the right was introduced here by the Code of Practice on the Right to Disconnect (Code). Bosses feared employees would be ignoring them from 5:31pm onwards and employees heralded it as the elusive secret sauce to all things work life balance! The reality transpired to be somewhat more prosaic, so what really happened once the right to disconnect was introduced and how has it impacted Irish workplaces?
Initial furore
When the Code was published in Ireland, its fair to say it created quite a stir. The Code was clear that out-of-hours work should only be permitted for “occasional legitimate situations” and that routine out-of-hours working would effectively be viewed as a breach of the Code. Many employers were understandably concerned about how that could be reconciled with the demands of the modern-day business environment, where many employees work across different time zones. In addition, the Code was released as Ireland emerged from the pandemic so employers were already grappling with the new world approach to hybrid and flexible working, amongst other things. This led many employers to question how they could align the principles enshrined in the Code with these practices.
There were also more practical issues, like the requirement in the Code on employees to notify their employer in writing where they missed a statutory rest period or break. That had not been a feature of Irish workplaces up to that point so there was uncertainty about how employers would deal with this or, indeed, whether employees would even bother doing it! The Code also encouraged employees to raise a grievance where they felt that the right to disconnect was not being respected or that their workload prevented them from disconnecting properly. This facility was always something that was available to employees but it was feared that this new focus on it could trigger a wave of employee relations and workplace morale issues.
Non-binding guidance
All these concerns were certainly ameliorated by the fact that the Code is not legally binding in and of itself, so an employee cannot bring a claim for breach of the Code. It effectively, therefore, serves as guidance to employers and employees. Importantly though, if an employer does not comply with the Code, this can be taken into account by the Workplace Relations Commission (WRC), the Labour Court and the courts in a claim, such as under the working time legislation.
In that regard, it’s interesting to see the approach being taken by the UK Government to the proposed right to ‘switch off,’ as it grapples with calls from trade unions to enshrine the right in statute (like many countries such as France and now Australia) and the need to portray a business-friendly environment to foreign direct investment. It appears the latter is winning out, with Labour’s stated preference now to introduce a softer version of the right pursuant to a non-statutory code, like Ireland and other countries such as Belgium.
Impact in Irish workplaces
So what impact has the Code had in Irish workplaces since 2021? It’s fair to say that its not had an obvious impact on the day-to-day lives of employees. However, it has nonetheless managed to weave its way into the fabric of the modern Irish workplace in more subtle and not insignificant ways.
When the Code was first introduced, employers and practitioners alike anticipated a deluge of grievances and claims from employees, despite the non-legally binding nature of the Code. However, the reality is that these never materialised. In fact, we are only aware of a handful of cases before the WRC since 2021 where the Code has even been referred to or taken into account. In that respect, the Code has been a damp squib.
Some industry surveys would also suggest that the Code has had little practical impact on the ground for employees. It strikes us that this perception may in part be due to the heightened expectations that many employees had for the Code when it was initially introduced; some expected to see real, almost immediate change with clear boundaries between work and leisure becoming sacrosanct.
While this may not have occurred as anticipated by some, the experience of lots of our clients in different sectors and our own experience at Matheson is that it has certainly had some practical impact, and an important impact at that. Most notably, this has been through the incorporation of its principles into workplace well-being practices, flexible working policies and things like Environmental, Social, and Governance (ESG) and Diversity and Inclusion initiatives. This stemmed from the fact that the Code not only required employers to amend policies such as annual leave and health and safety policies to ensure compliance with the Code, it also required employers to put in place a Right to Disconnect Policy. As with any employment policy, not all employers have a Right to Disconnect Policy. However, many employers do have one or have incorporated disconnect principles into other relevant policies such as hybrid or work life balance policies.
Indeed, the work around these employment policies (and the implementation of hybrid and flexible working practices) prompted a lot of employers to audit their practices and procedures to identify where changes and improvements could be made to reflect the post-pandemic world of work. This resulted in employers providing training to management on how to appropriately monitor working time issues and more generally to employees on their obligations to safeguard their own health and safety vis-à-vis working time. Employers used this training and updated policies to set expectations about when employees should disconnect, making it clear that out-of-hours work may be necessary from time to time to meet business and operational needs.
Arguably, the Code’s most obvious impact has been on the sort of day-to-day measures and practices that we commonly see now in Irish workplaces relating to internal and external communications. It’s hard to say how much of an impact the Code has had on this but it has certainly influenced behaviours around it; many employees are now more mindful about sending emails, messages, meeting invites and calls outside of normal working hours. For instance, employees are increasingly using the “delay receipt” function in email management systems and be-spoking signature blocks to make it clear that a response is not expected if the email is received out-of-hours for the recipient.
Part of the modern workplace
The Code was initially treated with caution and even fear by employers when it first issued. However, most employers quickly came to realise that the principles enshrined in the Code could not only co-exist with post-pandemic practices and initiatives, they could compliment them.
The non-binding nature of the Code was always going to soften the impact of the right to disconnect on the day-to-day lives of employees. However, this approach seems to have struck the right balance between establishing the right as a feature in the workplace, without curtailing the dynamic, business-friendly environment that attracts so much foreign direct investment to Ireland.
Its impact can, therefore, be summed up by the fact that it has rarely troubled employers in the form of employee relations issues and claims. However, it has benefited employees in less obvious ways in how it often forms part of the sort of well-being and flexible working practices and initiatives that are fast becoming an integral part of the modern workplace.
For further information please contact Employment, Pensions and Benefits partner Russell Rochford or your usual Matheson contact.