Mark Bell, Trinity College Dublin
Alan Eustace, Trinity College Dublin
Marta Lasek-Markey, Trinity College Dublin
Thomas Pahlen, Trinity College Dublin
The pandemic provoked a sudden increase in the proportion of people working remotely. 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 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. In particular, there is a risk that remote working gives rise to an organisational culture of constant availability. 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’. These are supported by a new public policy report published by the Covid-19 Law and Human Rights Observatory, which recommends that Ireland adopt legislation creating a right to disconnect.
The report explains that there are already enforceable rights to rest found in the Organisation of Working Time Act 1997. Recently, this has been complemented by 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 or any other relevant legislation is applied. The government has already committed itself to introducing legislation to provide a right to request remote working and, due to the EU Work-Life Balance Directive, it will have to create a right to request flexible working arrangements for parents and carers by August 2022. It seems, however, that the right to disconnect will not be included in such legislation and it will remain dependent upon the non-binding Code of Practice.
The report examines the situation in EU Law, followed by discussion of the position in France and Germany. At EU level, in 2020, the European Social Partners adopted a Framework Agreement on Digitalisation. One of the four themes in this Agreement is ‘modalities of connecting and disconnecting’. This includes a commitment for the social partners in all EU Member States to engage in collective bargaining in order to clarify the ‘legitimate expectations’ of workers when using digital work devices. In January 2021, the European Parliament went a step further, calling for legislation on the right to disconnect. Its resolution included a draft Directive fleshing out what is entailed by such a right. This included an obligation on Member States to take measures such as: ensuring practical arrangements for switching off digital tools; creating systems for measuring accurately working time; providing health and safety assessments related to remote working, including psychosocial risk assessments; and establishing criteria for derogations and any related compensation for work outside normal working hours.
As described in the report, the European Parliament’s initiative builds on the experience of other Member States that have already introduced legal measures on the right to disconnect. France was the first European jurisdiction to enact a statutory right to disconnect. Its experience 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.
The report identifies those measures that should 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’. Finally, it is important that the law provides for adequate remedies if it is breached and effective enforcement mechanisms.
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.
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.
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.
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.
Suggested citation: Mark Bell, Alan Eustace, Marta Lasek-Markey and Thomas Pahlen, 'Creating an Enforceable Right to Disconnect in Ireland' COVID-19 Law and Human Rights Observatory Blog (1 June 2021) https://tcdlaw.blogspot.com/2021/05/creating-enforceable-right-to.html
