The code will set out guidance for employees and employers with regard to the best practice and approaches to employee disengagement outside normal working hours. It was requested by Tánaiste (deputy prime minister) and minister for enterprise, trade and employment, Leo Varadkar, earlier this year.
Varadkar said the code of practice would ensure that both employers and employees are aware of their requirements and entitlements when it comes to disengaging from work and understand how they apply, especially in a remote working scenario.
It is understood that once the code is in place it will be admissible in evidence in proceedings before a court, the Labour Court or a WRC adjudication officer. The code will have considerable standing in the context of the resolution or investigation by these bodies of industrial relations or employment rights disputes.
Employment law expert Jason McMenamin of Pinsent Masons, the law firm behind Out-Law, said: “Covid-19 has led to a transformation of traditional working. Many employers have had a large proportion of their employees working from home since March 2020. As time goes on it is likely that home working and an agile approach to work will become a permanent feature for employers and employees. But ‘out of sight’ should not be ‘out of mind’ as employers will need to consider their legal obligations to employees,” McMenamin said.
Current Irish legislation does not explicitly refer to a "right to disconnect", although there is legislation in place to protect employees. The Organisation of Working Time Act 1997 currently provides that employers cannot permit employees in Ireland to work more than a maximum of 48 hours per week on average, except in very limited circumstances. Unlike the UK, there is no opt-out option for an employee in Ireland.
The 1997 act also sets out the minimum requirements for daily and weekly rest periods for employees. Employers also have an obligation to monitor and maintain records of working hours of their employees to ensure the maximum working week limit and daily and weekly rest periods are adhered to.
"Employers should ensure that there is regular contact between employees, that they are not isolated, they take regular breaks and that they do not fall into a cycle of working longer hours and not switching off. Communication with staff is key to ensuring that they understand that they have colleagues they can reach out to and who can support them. Employers should also consider whether they need to adapt their current employment policies to ensure they cover working from home as well as in the office,” McMenamin said.
McMenamin said that while it was too early to speculate how the code of practice would look, it was likely to have a big impact for employers.
The WRC right to disconnect consultation is open until 22 January 2021.