Employer Contacting Employee Out of Hours – The Right to Disconnect

Employer Contacting Employee Out of Hours – The Right to Disconnect

The Right to Disconnect refers to an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.

In brief, the Right to Disconnect has three main elements:

1. The right of an employee to not routinely perform work outside normal working hours.
2. The right to not be penalised for refusing to attend to work matters outside of normal working hours.
3. The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).

Below, we set out the legislative basis and recommendation of the Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Disconnect.

The Organisation of Working Time Act, 1997

The OWTA 1997 has its genesis in protecting the safety, health and welfare of those at work. The Act does not explicitly refer to a ‘Right to Disconnect’, but states that employers cannot permit employees to work more than a maximum of 48 hours per week on average, except in very limited circumstances.

As such, employers have a legal responsibility to keep records of employees’ hours worked under the OWTA 1997. Employers must ensure that their employees receive specified breaks within the day, as well as their daily and weekly rest. Employees must also receive their statutory entitlement to annual leave and public holidays.

The duty to ensure compliance with the OWTA 1997 rests with the employer and not the employee. Employees have a responsibility to cooperate with any appropriate mechanism introduced by the employer for recording of working time.

The Safety, Health and Welfare at Work Act, 2005 

The SHWWA 2005 makes further provision for the safety, health and welfare of persons at work. The Act sets out the responsibilities of employers, the self-employed, employees and various other parties in relation to safety and health at work. The Act also details the role and functions of the Health and Safety Authority, provides for a range of enforcement measures that may be applied and specifies penalties that may be applied for breach of occupational safety and health. 

Under section 8(2)(b) of the SHWWA 2005 the employer’s duties extend to ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’.

Employees have an obligation under section 13(1)(a) and 13(1)(e) of the SHWWA 2005 to take reasonable care to protect their safety, health and welfare at work and ‘not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’.

This includes an obligation to not work hours in excess of the legislation and, like the OTWA 1997, contains an obligation to cooperate with any appropriate mechanism introduced by an employer for the recording of working time.

Employment (Miscellaneous Provisions) Act, 2018 

This legislation provides that employees must receive a written statement of their core terms of employment within 5 days of starting employment. One of the core terms must establish what hours of work the employer reasonably expects the employee to work in a normal working day and a normal working week.

In this regard, normal working hours are those as agreed in an employee’s terms and conditions of employment, as governed by the employee’s contract of employment and/ or applicable collective agreement and/or any applicable Sectoral Employment or Employment Regulation Order in force.

Terms of Employment (Information) Acts, 1994–2014

This legislation provides that employees must receive a written statement of the remaining terms of employment (a contract) within 2 months of starting employment. This statement must include any terms or conditions relating to hours of work (including overtime) and details of any collective agreements that may affect the employee’s terms of employment.

Employer Obligations - Right to Disconnect

• Providing detailed information to employees on their working time, in accordance with the Terms of Employment Information Act, 1994 - 2014.
• Ensuring that employees are informed of what their normal working hours are reasonably expected to be under the Employment (Miscellaneous Provisions) Act 2018. 
• Ensuring that employees take rest periods, in accordance with the OWTA 1997.
• Ensuring a safe workplace, including reviewing their risk assessment and, where necessary their safety statement in line with the SHWWA 2005 and taking account of their obligations under section 8(2)(b) of the SHWWA 2005 which extends to ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. 
• Not penalising an employee for acting in compliance with any relevant provision or performing any duty or exercising any right under section 27 of SHWWA 2005.

Employee Obligations - Right to Disconnect

• Ensuring that they manage their own working time and section 13(1)(a) of the SHWWA places an obligation on an employee, while at work, to take reasonable care to protect their safety, health and welfare and the health and safety of co-workers. 
• Cooperating fully with any appropriate mechanism utilised by an employer to record working time including when working remotely.
• Being mindful of their colleagues’, customers’/clients’ and all other people’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).
• Notifying the employer in writing of any statutory rest period or break to which they are entitled to and were not able to avail of on a particular occasion and the reason for not availing of such rest period or break.
• Being conscious of their work pattern and aware of their work-related wellbeing and taking remedial action if necessary.

Conclusion

If an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be utilised. Where there is a collective agreement the parties should abide by those terms as it relates to raising grievances.

Notwithstanding that a specific contravention of the OWTA 1997 may be referred to the WRC at any point, if

the matter is addressed through the grievance procedure in the context of the Right to Disconnect and still remains unresolved on completion, the employee may refer it to the WRC under the appropriate legislation and citing this Code.

Further Information

For further information, please contact the author of this article, Barry Crushell.