Trinity College Dublin: Experts say legislation is needed to set in stone the right of Irish workers to disconnect

Experts from the COVID-19 Law and Human Rights Observatory at Trinity recommend Ireland puts the right of its workers to disconnect into binding legislation to safeguard against the working culture of “constant availability” and the damaging consequences that can have for well-being.

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.

Mark Bell, Regius Professor of Laws at Trinity, said:

“If work can be performed anywhere, and at any time, then workers may find themselves ‘always on’, with damaging consequences for physical and psychosocial well-being. In response, there are growing calls across Europe for the creation of a legally-enforceable ‘right to disconnect’.”

The current law in Ireland is based on the Organisation of Working Time Act 1997, which sets in stone enforceable rights to rest, and a Statutory Code of Practice on the Right to Disconnect, which is not legally binding, but can be taken into account when the 1997 Act is being applied.

Alan Eustace, PhD Candidate in Trinity’s School of Law,added:

“Contrary to the Government’s current position, our report concludes that these instruments are insufficient to provide adequate and effective enforcement of the right to disconnect.

“The report recommends that Ireland goes further by putting the right to disconnect into binding legislation.”

For context, at EU level, the European Parliament has called for legislation on the right to disconnect and has adopted detailed proposals to this end. France is the first European jurisdiction to enact a statutory right to disconnect. As a case study, it demonstrates that practical implementation demands the active involvement of employers and trade unions.

Detailing specific, recommended areas of focus, Alan Eustace, said:

“Legislation needs to clarify the distinction between ‘working time’ and rest periods; during the latter, workers should not be expected to be normally available to their employer, albeit 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, they must be 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’.”

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