Government moves to support remote working and an employee’s Right to Disconnect

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Derek McKay, Managing Director of Adare Human Resource Management discusses the recent announcement that the Government is set to introduce laws underpinning the right of employees to work from home. The announcement was made by Tánaiste Leo Varadkar at the launch of Ireland’s first National Remote Work Strategy and coincides with the deadline for submissions to the Workplace Relations Commission (WRC) to help shape the Code of Practice on the “Right to Disconnect” (22nd January 2021).

Remote working – here to stay?

The current Level 5 lockdown is expected to continue for months yet and given the timeline for the national vaccination programme, it is possible that many employees won’t return to the workplace until the second half of the year at the earliest.

Overall, remote working appears to be working reasonably well for most employers and employees. And, based on the Government’s announcement, it looks like remote working is here to stay. At the announcement, An Tánaiste outlined plans to introduce laws underpinning the employee’s right to work from home. Under the plans, it is expected that one fifth of the public sector will be working from home. It was also outlined that the roll-out of the National Broadband Plan is set to be accelerated.

An employee’s right to disconnect

A Code of Practice on the “Right to Disconnect” will also be drafted. The WRC engaged in a public consultation process, which closes this Friday (22nd Jan), for submissions from stakeholders to help formulate the guidance for employers and employees regarding best practice on disconnecting or disengaging from work emails, calls or other forms of communication outside agreed working hours.

While the health crisis accelerated the discussions on remote working, it has been something the Government has been looking at for some time, particularly around the right to disconnect. The right to disconnect is already in place in a number of other European countries and comes from a 2003 EU Directive that covers different aspects of working time.

The Directive stipulates that employees are entitled to a minimum rest period of 11 consecutive hours per 24 hours and must have at least one day off work per seven days. While not legally binding, it’s expected member states legislate accordingly.

It’s no surprise that two member Bills are at committee stage before the Dáil and, if passed, these will amend some statutory provisions of the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and application of the Safety, Health and Welfare at Work Act, 2005.

Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020: Section 15 of the Organisation of Working Time Act, 1997 is amended through the provision of:

  • The right to disconnect from work related e-mails, texts or calls outside of working hours.
  • Implementation of a right to disconnect policy establishing hours to disconnect
  • The production of a report on the right to disconnect detailing ways to
    • minimise out of hours contact.
    • establish a standby allowance.
    • deliver an overtime payment.
    • ensure all working time does not exceed 48 hours.

This insertion into the Act makes it an offence for an employee to be reprimanded, punished, or subjected to disciplinary action if they disregard a work-related communication sent after workhours, unless already agreed under the terms and conditions of a relevant right to disconnect policy.

Working from Home (Covid-19) Bill 2020: Section 3(1) of the Terms of Employment (Information) Act 1994 is amended through the requirement for employers to set out what their policy is in relation to out-of-hours communication.

Amendments to the Organisation of Working Time Act 1997 sets out the right to switch off:

  • between the employee’s normal or regular finishing time of work as specified by the employee’s contract of employment or by an applicable employment regulation order, registered employment agreement or collective agreement, or
  • where no normal or regular finishing time of work is specified, or where additional hours have been worked, between the notified finish time and next starting time.

Application of Safety, Health and Welfare at Work Act 2005 to provide to certain employees working temporarily from home a workstation, and a flat rate payment (free from tax), to meet the additional expenses incurred by the employee in working from home.
The proposed amendments under the Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020 and Working from Home (Covid-19) Bill 2020 have a common purpose to seek to give added protections to employees while remote working. And, given the Tánaiste’s announcement, I think we will see these Bills move forward quickly.

In the meantime, employers should ensure that they remain compliant with the Organisation of Working Time Act, 1997 in respect of working hours and consider how any new policies would work within their business. Without addressing the matter, employers could face increased claims on working hours to the Workplace Relations Commission whose most recent report outlines that 30% of claims in 2019 related to hours of work issues and an additional 7% of claims related to terms and conditions of employment.

In their report, the Workplace Relations Commission outlined that specific complaints in relation to hours of work are by far the most prevalent at 6,266 which is over three times the number of complaints received in 2018. With “working hours” stated as the highest complaint type, it is important that employers are the driving force of compliance in this area and ensure that sufficient provision is made of the right to disconnect to mitigate against those claims and to safeguard the interests of their employees.

How employers manage employee request to work from home is going to dependent on the business needs and, at the point, any employee working remotely is doing so on an interim basis. Given the announcement that there will be laws introduced to support remote working, it won’t suit all sectors and employers need to clearly establish what their policies are in relation to remote working to avoid confusion or challenges.

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