THE GOVERNMENT HAS reaffirmed its plans for a code of practice on the right to disconnect from work.

It is intended that the code would set out guidance for companies and employees in agreeing responsibility for things like answering emails, calls and messages outside normal working hours.

The plans had been mooted since before the Covid-19 pandemic but the the acceleration of remote-working has given them additional urgency. Other European countries have had the right in place for some years.

EU directive

The kernel of the right to disconnect comes from a 2003 EU directive that covers different aspects of working time.

Within that directive, it states that EU member states must ensure that workers are entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period. Workers must also have least a day free of work within a seven-day period.

EU directives are not legally binding but require that member states legislate to achieve the same results.

Following on from that EU directive, France took up the running on enforcing rules around switching off, or at least forcing companies to look at it.

The law, which was introduced four years ago, doesn’t specify the rules that are to be followed but instead requires that companies with more than 50 employees enter into mandatory negotiations with staff to define their freedom to disconnect.

The law states that the negotiations must:

regulate the use of digital tools, in order to ensure the respect of the rest and leave periods as well as that of personal and family life.

Under the rules, if an agreement is not reached between the company and unions or other employee representatives, the company must publish a charter that would make explicit the demands on and rights of employees out-of-hours.

Some companies in France have gone so far as introducing measures including cutting email connections in the evening and weekends or even destroying emails automatically that are sent to employees while they are on holiday.

Under the French law, there are no direct sanctions on companies for not implementing the rules but an employee can sue if they feel their rights have been infringed.

In 2018 for example, the French wing of pest-control firm Rentokil was ordered to pay an employee €60,000 after France’s Supreme Court found the company had required the employee to “permanently leave his telephone on…to respond to requests from his subordinates or customers” in case of any problems while not at work.

Other countries have followed suit in recent years, including Italy, Spain and Belgium.

In the case of Spain, employees in both the public and private sector are entitled to disconnect their device outside of working time. As in France, companies are also obligated to come up with a stated policy about switching off.

Despite these moves in Europe and the impending one in Ireland, some have argued that they are not required.

It can be argued that employment contacts already state the hours in which employees are required to be available to their employer and that employees could reasonably switch off outside of these hours in any case.

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In Ireland in 2018, a business executive at a subsidiary of meat producer Kepak was awarded€7,500 over being required to deal without-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.

At the Labour Court, Kepak Convenience Foods Unlimited Co was ordered to pay a former business development executive €7,500 over repeated breaches of the Organisation of Working Time Act.

At the time, employment law expert and solicitor, Richard Grogan told TheJournal.ie that the ruling was “very clear and precise” and would “serve as a massive wake-up call to employers who expect employees to be available 24 hours a day, seven days a week”.

But whether this case was indeed a ‘wake-up call’ or not, the issue remains that it may be difficult in some jobs to set define ‘working hours’, thereby making it difficult to define what hours sits outside those hours.

Add to this the Covid-19 pandemic and the likely irreversible change it has made to working norms, there are concerns that the line between working and not-working could become become even more blurred.

The new rules when they are enacted should at least give many employees greater clarity about their responsibilities.

A public consultation on what the right to disconnect should look like in Ireland is currently being run by the Workplace Relations Committee. The consultation is still accepting submissions until the end of next week.