A Right to Disconnect: Irish and European Legal Perspectives.

The overarching recommendation is made in a newly published report – A Right to Disconnect: Irish and European Legal Perspectives – that outlines how existing laws are insufficient to provide adequate and effective enforcement of the right to disconnect. The report also details specific areas of focus in addressing this issue.

COVID-19, working from home, and the new normal.

The COVID-19 pandemic provoked a sudden increase in the proportion of people working remotely and while the vaccination programme is creating conditions that should permit a gradual return to workplaces, it seems likely that remote working will remain a prominent, new-normal feature of the post-pandemic labour market. While remote working offers flexibility in respect of where and when work is performed, it poses challenges for work-life balance. There is a particular risk that remote working gives rise to an organisational culture of constant availability.

This report explains the current law in Ireland. On the one hand, there are enforceable rights to rest found in the Organisation of Working Time Act 1997. On the other, there is a Statutory Code of Practice on the Right to Disconnect. This is not legally-binding, but it can be taken into account when the 1997 Act is being applied. Contrary to the Government’s current position, this report concludes that these instruments are insufficient to provide adequate and effective enforcement of the right to disconnect. It recommends that Ireland goes further by putting the right to disconnect into binding legislation, which should include a definition of ‘working’ and ‘leisure’ time that sufficiently captures the need to protect workers from the expectation of work as well as its actual performance, and of the circumstances in which it is permissible to contact workers outside normal working hours.

To illuminate the context and options for such legislation, the report examines the situation in EU Law, followed by discussion of the position in France and Germany. At EU level, the European Parliament has called for legislation on the right to disconnect and it has adopted detailed proposals to this end. France provides an example of the first European jurisdiction to enact a statutory right to disconnect. It demonstrates that practical implementation of this right demands the active involvement of employers and trade unions. In contrast, Germany has not yet adopted such legislation. Nevertheless, as in Ireland, there is an active debate on the rights already flowing from the law on working time and certain businesses have already taken initiatives designed to facilitate disconnection by workers.

In the light of the examples provided in this report, it concludes with a set of recommendations for measures to be addressed in any future legislation on the right to disconnect in Ireland. Legislation needs to clarify the distinction between ‘working time’ and rest periods; during the latter, the worker should not be expected to be normally available to the employer, albeit that there may be circumstances where flexibility is required. This non-availability is key – rest periods must be protected from the risk or expectation of being contacted for work purposes, whether or not work is actually performed. However, account needs to be taken of the realities of the business – including any business conducted across time zones, and flexible working arrangements. For such laws to function in practice, it is necessary that they are implemented by employers with the participation of trade unions or other workers’ representatives. To be effective in practice, all workers should be included and this should encompass ‘non-standard’ forms of employment, such as those in the ‘gig-economy’.

Contributors to the Report

• Mark Bell is Regius Professor of Laws and Head of School at the School of Law, Trinity College Dublin. He has published widely on Anti-Discrimination Law and Employment Law, particularly in relation to EU law.
• Marta Lasek-Markey is a PhD candidate in the School of Law. The subject of her thesis is Posted Workers and Precariousness in Practice, and her research is funded by the Irish Research Council.
• Alan Eustace is a Scholar of Trinity and a PhD candidate in the School of Law. The subject of his thesis is The Worker and the Constitution: A Theory of Constitutional Labour Law, and his research is funded by the Irish Research Council.
• Thomas Pahlen is a PhD candidate in the School of Law. His research examines the horizontal effect of the EU Charter of Fundamental Rights in employment law.

The COVID-19 Law and Human Rights Observatory of Trinity College Dublin engages in research across the full range of Ireland’s legal response to COVID-19. Academics in the Observatory work with research assistants to identify, aggregate, contextualise, explain, and analyse the legal components of Ireland’s COVID-19 response. They aim both to inform the public and to provoke public debate.