The WRC’s new code of practice concerning the right to disconnect form work has been signed into law from 1st April 2021. This code of practice arises from an attempt to regularise the Covid 19 enforced working at home practices that have arisen since March 2020.
The lines between work and home and rest have become increasingly blurred over the last few years, especially since the growth of the internet, email, social media, and the powerful and ubiquitous smart phone.
The Right to Disconnect Code of Practice applies to all types of employment including mobile working, working from home, and working in a fixed location. The failure to implement the code of practice in the workplace is not an offence, per se.
But the failure to implement it in the workplace will be taken into account by the WRC, Labour Court, and other relevant fora. The failure to adhere to the code of practice will evidently make it more difficult for an employer to defend claims.
The code covers contact the employee might receive from the employer, other employees, clients, customers, contractors, and so forth.
The purpose of the code of practice is to give employers a framework within which reset the boundaries between being in work and down time for the employee.
Code of practice-3 components
There are three main components in the right to disconnect code of practice:
- The right of the employee not to be routinely requested to work outside her normal working hours
- The right of the employee not to be penalised for refusing to work outside the normal hours
- The right of the employee not to be routinely bothered by contact such as email or phone calls/messages outside normal working hours.
The code does recognise, however, that there are occasions when contact outside hours will be necessary. But this should be the exception, not the rule.
And some argue that the use of the word ‘routinely’ gives the green light for contact in a non-routine way which may have the effect of circumventing the spirit and provisions of the Organisation of Working Time Act 1997, and other relevant legislation.
Right to disconnect policy
The employer should now draw up a right to disconnect policy and the code of practice contains a sample policy. The policy should
- Provide that employees should switch off outside normal working hours
- Provide sufficient flexibility to allow for occasions when contact is necessary outside working hours
- Provide guidance for employees who work in different time zones
- Provide a way for employees to raise concerns about not being able to disconnect
It is advisable that employers provide training for all employees concerning right to disconnect. Moreover, employers should be aware of some employee’s difficulty in disconnecting and be proactive in addressing that problem.
The Organisation of Working Time Act 1997 already makes many provisions concerning working time, rest breaks, annual leave, working time records, and so on.
This code of practice needs to work in tandem with existing legislation, therefore, and this would also include the Safety Health and Welfare at Work Act 2005 which provides that employers provide a safe place of work.
Working excessive hours is also something that is covered by the Safety Health and Welfare at Work Act 2005 and the Organisation of Working Time Act 1997.
Employers need to take this code of practice seriously. If they do it may actually be a positive benefit in their business.
Because it will restrict their ability to get into difficulty in relation to subjecting employees to excessive working hours, excessive demands, with consequent personal injury claims arising from workplace stress arising from long hours and unreasonable demands.