by Breda O'Malley February-24-2021 in Employment Law, COVID-19
Email, text, WhatsApp, Zoom, Skype, Teams or an old-fashioned call, the list goes on. There are many ways in which employers and employees now connect with each other, more so since March 2020 and the disruptive force of the Covid-19 pandemic.
Working from home has become the norm for many, given the restrictions imposed to combat the devasting effects of the pandemic. However, the change in how we work began long before the pandemic and was undoubtedly attributable to the advances in technology and the media available which make people more accessible.
The discussion has moved from how employers and employees connect with each other to whether employees should have a "right to disconnect".
Ireland’s employment legislation is not up to date with the situation we find ourselves in today. The recent publication of the Government’s National Remote Work Strategy demonstrates that steps are being taken in the right direction.
Organisation of Working Time Act 1997
The Organisation of Working Time Act, 1997 (the “Act”) sets out an employee’s statutory entitlements to rest breaks, maximum working hours and annual leave entitlements. Under the Act, an employee should not work, on average, more than 48 hours per week. Employers are legally obliged, under this Act, to keep a record of the working hours of all employees.
Whilst employees’ rights and employers’ obligations are clearly set out in the Act, there is no legal definition of the “right to disconnect” and although arguably it is implied in the Act, clarity is needed.
WRC public consultation
In December 2019, the Department of Enterprise, Trade and Employment (the “Department”) published its research paper on Remote Work in Ireland - Future Jobs Ireland 2019. Arising from the report was a clear need for the development of a legal framework to provide clarity and support to both employers and employees on remote working.
At the time that this report was commissioned, there was an increase in interest from employees for remote working and more flexible working arrangements. Ultimately, the upshot from the report was to build a legal framework around information collected.
The Workplace Relations Commission is conducting a public consultation on workers “right to disconnect’’. A Code of Practice is expected to follow, guiding employees and employers on best practice for employee disengagement, outside normal working hours.
Relevant cases
In 2018, the right to disconnect outside of working hours came under the spotlight in the case of Kepak v O’Hara. Ms O’Hara brought a case against her former employer, Kepak, under the Act.
It was determined that the employer had infringed section 15 of the Act, by permitting the employee to work more than the statutory maximum number of hours per week permitted under the Act. The employee had produced evidence of her regularly emailing and receiving emails outside normal working hours. The Court was satisfied that Kepak was aware of the employee’s working pattern and failed to monitor and curtail it. The Labour Court awarded €7,500 in compensation to Ms O’Hara for the employer’s breach of the Act.
Other jurisdictions
UK – The right to request flexible working (which includes remote working) is a statutory right. Following an employee request, employers are legally obliged to consider the request fairly, looking at several factors, and to decide within 3 months. An employer may only refuse a request if one of the specific grounds identified in the legislation is applicable. If the request is refused, an employer should allow the employee to appeal the decision. An employee can only make a statutory request once in any 12-month period. The UK has also published a Code of Practice on flexible working and work/life balance, providing guidance to both employers and employees.
Netherlands – The Netherlands published comprehensive legislation on flexible working, including remote working. As in the UK, an employee can request the right to flexible working. However, in the Netherlands, the employer must grant such a request, unless there is a “significant business or service interest” why not to do so. If an employee’s request is denied, they are entitled to submit a new request after two years.
National Remote Work Strategy
The Government’s National Remote Work Strategy was published on the 15 January 2021. It sets out the Government’s plan and objectives to promote remote working and to ensure that it becomes a permanent fixture in the Irish workplace.
The strategy is based on 3 fundamental pillars, each containing different actions which have clear implementation dates throughout 2021:-
- create a conductive environment for remote work;
- develop and leverage remote work infrastructure; and
- build a remote work policy and guidance framework.
Some of the main actions the Department will take under this Strategy are:
- legislate the right to request remote work;
- develop the right to disconnect Code of Practice;
- mandate home and remote work as the norm for 20% of public sector employment;
- review the tax treatment of remote work;
- invest in a network of remote working hubs across Ireland; and
- establish high-speed broadband to all parts of Ireland.
What Employers Need to do Now
Some organisations already have a “right to disconnect” policy.
Once the WRC’s Code of Practice on the “Right to Disconnect” is published and the objectives of the Government’s National Remote Work Strategy are achieved, employers will be better placed to prepare policies dealing with the right to disconnect and requests for flexible working.
For further information on any of these issues, please contact Breda O'Malley bomalley@hayes-solicitors.ie or any member of the Employment Law Team at Hayes solicitors.
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.