The “Right to Disconnect” set to move forward via a Code of Practice.
Employment legislation and codes of practice are usually created, and amended, in response to a clearly identifiable and defined issue of concern in the employer/employee relationship. For 2021, the topic that is very much on the way in terms of regulation is a code of practice on what is colloquially known as the right to disconnect. A signal of the urgency with which this is being treated is that the Workplace Relations Commission is seeking submissions by close of business in Friday 22nd January – by now a tight window - for employers be they small, medium or large, to make their voices heard.
The current pandemic generated disruption and the contingencies adopted to the place of work has served as a catalyst for this. The sentiment towards a right to disconnect could be attributed to the lack of a psychological break offered by a physical commute in a working from home scenario. With the future looking more and more like a hybridisation of work (e.g. the openness of the Irish Government to public sector employees working a day per week from home), and validated employee sentiment towards flexible work options, action is seen to be due on this topic. It will be interesting to see what the code of practice will contain and how it will compare to legislation enacted in France, Spain, Belgium and other EU countries. Whatever form it takes, it will add to the need for employers to further codify their duty of care to ensure that remote worker are supported – and seen to be so.
Looking back 20 years ago as mobile technology became more prevalent and affordable, the concern was that variations in commitment to adoption of digital technology would drive a divide in society and risk some being left behind in a world of increasing change. This was in a time where people came to work – and then they went home and work mostly stayed in work.
Early adopters of remote access who sought connectedness were pioneering and seen as highly committed employees. Cloud-based infrastructure accelerated this. We have become more connected in our personal lives too as so many previously personal transactions such as banking services and are fully online, not subject to a 5:00 p.m. office closure. Our personal approach has become one of tasks and connectedness lacking boundaries in our daily lives.
A notable case in 2019 which was adjudicated upon by the Labour Court demonstrated a legal route for an employee to take a case under the Organisation of Working Time Act 1997. Key to the case were emails sent by the employer outside of the contractually indicated working hours and in breach of the working time limits set out in the Act. This should prompt employers to write tighter versions of the clause often inserted in a contract of employment, which sometimes deems a job to be at a level of seniority whereby an employee will work the hours necessary for the execution of their work. Clearer provision for the recording of this may be necessary after the enactment of the code of practice.
Custom and practice is often a change agent, usually to the disadvantage of the employer; but it is often the case that an opening for a legal case is created by inattentiveness to the potential repercussions of short-term actions over a longer period of time. Connectedness has increased because of a slow creep and changing norms around work, and how and where it is executed. As mentioned already, I would argue that this creep towards increasing connectedness reflects the always-on technology absorption in other aspects of our lives, but this will never be a defence for an employer whose policies are ambiguous and unenforced.
Moving forward from a mind-set of obligations, there is an opportunity for employers to frame their approach from a “right to disconnect” to a culture of appropriate connection and ground this in their policies on work-life balance. The vigour, absorption and dedication of engagement needs to be balanced against wellness and long-term performance. It is hardly surprising that the engagement that is desired can also translate into a desire to remain connected – a workplace fear of not missing out, or of being perceived as not responding quickly enough to emails or other messaging formats. However, there is little value in a culture where people feel that they always have to be on, but are becalmed in tired mediocrity and lacking sharpness.
The Workplace Relations Commission Code “will set out guidance for employees and employers with regard to best practice and approaches to employee disengagement outside normal working hours”. The recent framework agreement between AIB and the FSU has some notable inclusions in that it isn’t a basic exercise in fencing off work time, it also contains guidance on how to manage and allocate time during work hours.
An opportunity exists for organisations to go beyond what will come from the upcoming consultation process. Wellness has is become a big issue and an opportunity exists to support disconnection - from more than work - and emphasise high performance when connected.