Because the Dáil debates the Working from Residence (Covid-19) Invoice and the Authorities will get able to publish their technique on distant working , ought to employers take into account setting up a ‘proper to disconnect’ coverage.
AIB and the Monetary Companies Union have agreed a ‘proper to disconnect’ coverage, the primary of its variety in Eire. The coverage outlines quite a few measures, together with avoiding lunchtime conferences, expectations that employees will solely verify and ship emails throughout regular working hours and turning on ‘out of workplace’ messages when workers end work.
So, if an employer is contemplating their very own disconnect coverage, what’s the legislative place in relation to such a coverage? The Organisation of Working Time Act 1997 carried out the European Working Time Directive into Irish regulation, offering workers with varied protections to make sure they weren’t working extreme hours and that they have been receiving ample breaks.
Below the Act, workers have to be given a 15-minute relaxation break each 4.5 hours, a 30-minute break each six hours, 11 hours consecutive relaxation each 24 hours, and 24 hours consecutive relaxation each seven days.
There may be additionally a compulsory 48-hour common weekly working restrict which applies to all workers and, with very restricted exceptions, can’t be contracted out of.
So, technically talking, the precise to disconnect is already enshrined in laws.
The problem although, is that the Act was created in 1997, a time when the office and dealing practices have been vastly totally different to how they’re now. With the introduction of expertise, these rights have regularly been impinged upon as work has turn out to be extra accessible by way of how, when and the place your workers can work.
In 1997 it was simple to file workers’ working time, because it was principally carried out on website in an workplace, manufacturing facility or store. These days it’s almost inconceivable, as work is carried out at varied instances, in varied areas and on varied units.
The current choice within the Kepak versus O’Hara case uncovered the follow of extreme working hours in addition to the weaknesses in relation to present reporting practices. The case involved an worker who was discovered to have labored extreme hours, in breach of the Act, and was awarded compensation by the Office Relations Fee (WRC).
Ms O’Hara was employed by Kepak and contracted to work 40 hours per week. She outlined that she would frequently obtain and reply to emails from earlier than eight o’clock within the morning till after midnight.
She claimed that, consequently, she frequently labored in extra of the typical of 48 hours per week permitted beneath the Act.
In responding, the corporate claimed that Ms O’Hara was contracted to work 40 hours per week and there was no obligation upon her, both contractual or in any other case, to work in extra of 48 hours per week. It additional claimed that Ms O’Hara was working these lengthy hours as a consequence of her personal inefficiency.
To find in Ms O’Hara’s favour, the Labour Courtroom awarded her €7,500 in compensation for her employer’s breach of the laws.
There have been two notable outcomes from this case from an employer perspective.
The primary associated to the employer’s obligation to file their workers’ time beneath the Act. In follow, only a few corporations retain information within the prescribed format or in any respect and the Courtroom discovered that the place information aren’t stored within the prescribed format, the onus is on the employer to show that they’re compliant.
The second pertains to the corporate’s defence that they didn’t require Ms O’Hara to work the hours that she labored. The Courtroom discovered that the onus is on the employer to make sure that their workers usually are not working extreme hours. If not recording the hours, they might want to observe workers’ working practices as a substitute. In the event that they select the latter plan of action, they are going to should be proactive in addressing any extreme hours being labored, or efficiency handle the worker in order that they work extra effectively.
This was a big case and set alarm bells off with many employers, if it had turn out to be acceptable follow for his or her workers to work extreme hours throughout evenings and weekends, with no information on file and no motion taken to handle these practices.
The WRC’s annual report for 2019 indicated that complaints in relation to working hours at the moment are probably the most prevalent criticism kind, with 30pc of all complaints obtained final 12 months regarding this challenge. It stated the 6,266 complaints in relation to working hours in 2019 represented a three-fold improve on the quantity obtained in 2018 (2,026).
Extra not too long ago, commerce union Fórsa carried out Eire’s largest ever worker opinion survey on distant working, with 86pc of respondents indicating that they want to work remotely in some format. As a part of the survey, respondents have been requested about their considerations when it got here to working from dwelling.
The second greatest concern (42pc) was that it will be more durable to disconnect from work calls or electronic mail. It’s evident that disconnecting from work is a matter for workers within the fashionable work setting, the place expertise has enabled an “at all times on” tradition.
Whereas there isn’t any authorized proper to disconnect at current, the Working from Residence Invoice will search to handle out-of-hours communications. Nevertheless, employers are nonetheless obliged to make sure that they’re in compliance with the Organisation of Working Time Act, with the Kepak choice additional emphasising this.
Taking all of this into consideration, implementing a ‘proper to disconnect’ coverage at firm stage could possibly be an efficient technique of guaranteeing compliance and forestall your workers from working extreme hours. This could possibly be notably necessary within the present circumstances the place distant working has turn out to be the norm and employers have much less oversight of their workers’ working practices.
Ger Connolly is employment regulation associate at Mason Hayes & Curran LLP.