"Working time" in Ireland is defined under the Organisation of Working Time Act 1997 (Act) as any time that an employee is at their place of work or at their employer's disposal, and carrying on or performing the activities or duties of their work. The definition is arguably a product of its time, when continual connectivity to the workplace was rare and the traditional "9 to 5" workplace was the norm and keeping track of working time was a simpler task. However, the shift to today's digital workplace, where lines between working time and rest time are more and more blurred, means it may not be as easy to distinguish between when an employee is on or off the proverbial "clock".
The Act prescribes strict rest periods and maximum working hours for employees, in addition to requiring accurate records of same to be maintained. The Act appears to guarantee periods of uninterrupted rest away from the workplace. However, ensuring employees are disconnecting from work is increasingly complex, with employees checking emails via smartphones on their morning commute or logging in from home afterhours. Technological advancements coupled with the shift to remote working (significantly accelerated by the ongoing pandemic) raise the question of whether Ireland's working time legislation is keeping up with the times.
Remote working here to stay
Spurred by the ongoing pandemic, 2020 has seen the publication of numerous studies which indicate an appetite to put temporary remote working arrangements on a more permanent footing. A recent study conducted by Fórsa found that 86% of the workers surveyed were interested in working from home, while over 80% of these expressed a preference for a hybrid arrangement. Although most were civil and public servants, its findings reflected similar research on the private sector. Indeed the Programme for Government (Programme) (discussed in part one of our article series) has committed to developing a remote working policy, emphasising that this "new normal" is here to stay.
Is a right to disconnect on the way?
A significant consequence of the shift to remote and flexible working arrangements is combatting "perpetual plug-in". Lines between work and home life are increasingly entangled, bringing into sharp focus the need for a considered approach to employees' right to disconnect. Even before the pandemic, in its Remote Work in Ireland – Future Jobs 2019 report, the Department of Business, Enterprise and Innovation identified the right to disconnect as an important issue to be addressed. More recently, the Programme commits to bring forward proposals on a right to disconnect, as part of a "better work-life balance". It is anticipated that the Workplace Relations Commission may be involved in drawing up a code in this evolving area.
Future Irish legislation may be guided by other jurisdictions that have already placed the right to disconnect on a legislative footing. The French Supreme Court recognised a right to disconnect in 2004 and it was formally introduced in the French Labour Code in 2017. Now companies in France with more than 50 employees must develop a charter detailing time periods within which staff are not permitted to send or answer work-related emails. Similar approaches have been adopted in Belgium, Italy and Spain.
Innovative employers are implementing internal policies to support employees' ability to disconnect from work. For example, Volkswagen and BMW have blocked emails to employee smartphones outside designated work hours, while Porsche has discussed the establishment of a system where emails are returned if sent outside the hours of 7pm to 6am. French telecommunications company, Orange, in a bid to avoid over-consumption of digital tools, has signed a company collective agreement which stipulates that "respect for private life and the right to switch off are considered to be fundamental rights".
Under the Act, employers are required to maintain records of their employees' daily and weekly working hours and rest breaks, which must be retained for three years. A recent Labour Court (Court) decision illustrates its approach to breaches of the Act, addressing an employee's right to disconnect.
In Kepak Convenience Foods Unlimited Company v Grainne
O'Hara  ILCR DWT1820, the Court awarded €7,500
in compensation to an employee who, by sending and receiving
work-related emails outside normal work hours, had exceeded her
statutory maximum working hours. The Court was critical of her
employer's failure to take steps to "curtail the time she
spent working", as well as its failure to keep proper records
of working and rest time, concluding that it had effectively
permitted the employee to work excessively.
In Federacion de Servicios de Comisiones Obreras v Deutsche Bank SAE (CJEU Case C-55/18), the European Court of Justice (CJEU) confirmed the onus is on employers to put in place an "objective, reliable and accessible system" to record daily and weekly hours worked. The CJEU was clear that "economic considerations" or costs associated with putting such a system in place cannot undermine the health and safety of workers.
Accurate record-keeping in the fluid world of remote working presents a complex task. But, as the law currently stands, a failure to keep accurate records may be fatal to defence of claims for breach of working time legislation.
Without a statutory right to disconnect and in the absence of any formal guidance, it is difficult for employers and employees to navigate the new remote working landscape from a "working time" perspective. As the pandemic continues, employers are exploring measures to support employees who are experiencing burnout while working remotely. Currently, the law requires accurate record-keeping of working and rest time. In theory, this should highlight situations where an employee is not disconnecting and the employer is, effectively, permitting the employee to exceed maximum working time. However, technical difficulties abound in monitoring remote employees' working and rest hours accurately. Notwithstanding this practical hurdle, the law on employers' obligations is clear.
We consider what the future in Ireland can and might look like in our new article series The Future of How Ireland Works. This article is Part 3 in the series, click the following links for:
- The Future of How Ireland Works Part 1: The Programme for Government – Key Points for Employers and The Future of Work
- The Future of How Ireland Works Part 2: The Impact of COVID-19 on Gender Equality in the Workplace
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