The Government has introduced a new code of practice to bolster the right of employees to switch off from work outside normal working hours.
Tánaiste Leo Varadkar has presented the move as an effort to strike a better work-life balance, no bad thing in an era of home-working. However, the initiative is but a start down a long road and lawyers say it is open to court challenge.
What’s the problem?
The constant and ever-growing tide of calls, emails and text messages on work devices leaves many workers feeling they are never off duty. The intrusion on private life is all the greater because working from home has become the norm for many.
The Tánaiste says the new code will protect the right of every employee to not have to routinely perform work outside normal working hours. Thus workers have the right not to be penalised for refusing to do so. Moreover, the code underpins the duty to respect another person’s right to disconnect by not routinely emailing or calling outside work time.
How is it supposed to work?
Employers are being urged to engage with staff or unions on a right-to-disconnect policy that takes account of the needs of the business and its workforce. "It's not revolutionary," says barrister Des Ryan, associate law professor at Trinity College Dublin. "But at least it's an initial step towards recognising the importance of the right to disconnect and the obligation on employers and employees to consider and monitor work-life balance."
Back to 9-5?
Not so fast. “Does this mean that nobody is ever going to check or send an email after official working hours? Of course not,” Ryan says. “This is not going to be an instant panacea for people concerned about employee burnout because of a failure to switch off. Instead, it’s an important initial step in trying to normalise or bring about a culture in the workplace where consideration is given to the need to disengage from work.”
How big is this really?
The code itself is not legally binding and it won't be an offence to break it. But it can be used in evidence in legal proceedings so it is a "significant" development, says Ryan. He notes that Supreme Court rulings on workplace bullying are grounded in definitions of bullying first set out in a similar code of practice.
What about dealings with colleagues in the US or China, several time zones away?
If employees in Ireland need to work beyond regular hours with colleagues in distant countries then the policy should reflect that. The policy must recognise that time differences and international travel "may result in colleagues connecting at different times" outside normal hours, says the code published by the Workplace Relations Commission. "This does not mean that the recipient needs to respond in the same time period. Clear guidance around disconnecting and expectations for responding to digital communications globally should be provided to all employees."
Far from it, says Richard Grogan, an employment law solicitor based in Dublin. Instead of enhancing workers' rights, he argues the new code could be used to dilute them.
How can that be?
By law as it stands, an employer can contact staff to work out of hours only because of an accident or threatened accident, or with 24 hours’ notice. “You can’t have an emergency every week,” Grogan says. But the new code says company policies “should allow for occasional legitimate situations” when it is necessary to contact staff outside of normal working hours.
Legitimate reasons per the code are not limited to emergencies?
Exactly. They include: ascertaining availability for rosters; filling in at short notice for a sick colleague; where unforeseeable circumstances arise; where an emergency may arise; and/or where business and operational reasons require contact out of normal working hours. In this respect, says Grogan, the code “flies contrary” to the Organisation of Working Time Act. This is equivalent to saying drivers can occasionally exceed the speed limit on a stretch of road, he says.
So the code could be destined for the courts?
“It’s going to take a couple of years to get any cases running,” says Grogan.