Our Submission on the Government Consultation on Flexible Working*

By January 15, 2020Uncategorized

flexibleworkingconsultation@justice.ie

19 December 2019

Re: Right to Disconnect Outside Work Hours

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Dear Minister,

I am proposing to make a submission in relation solely to the issue of the right to disconnect outside work hours.

Our Organisation of Working Time Act, 1997 is based on the EU Directive. The CJEU has recently held that an employer is obliged to maintain such records, as is necessary to show the hours that the employee worked of any particular day.

When the Directive was adopted Ireland sought limited derogations.

There are some basic entitlements:

A right to an 11 hour uninterrupted rest period.

A right to rest periods during the day after 4.5 hours work and 6 hours work, of 15 minutes and 30 minutes respectively.

A requirement to have a 35 hour uninterrupted rest period every week which will normally be a weekend.

A requirement that Employees do not work in excess of 48 hours.

In respect of the Provisions of Section 12 of the Organisation of Working Time Act, it states that an employer shall not require employee to work for more than 4.5 hours, or 6 hours is relevant without providing the employee with a break. The issue of “required” is contrary to the Provisions of the Directive which have no such limitation.

There is effectively an obligation on an employer to ensure that the employee gets the appropriate rest and breaks periods.

Contracts of Employment will normally provide that an employee will work a set number of hours for week which could be up to 40 in many cases or sometimes longer and up to 48 maximum. In other contracts it will provide a start and finishing time on a daily basis. Many of those contracts will provide that the employee shall provide and do such additional hours as are necessary for them to perform their duties.

There will of course always be emergency situations which can arise. However, where an employee has a contract that sets particular number of hours per week or a daily start and finishing time, then if additional hours are required there is requirement under Section 17 of the Organisation of Working Time Act, 1997 to provide the employee with 24 hours notice. Because of the use of smartphones, employees can now obtain e-mails at any stage. They can obtain them at all times of the day and night. They can be receiving them on holidays.

Our legislation as regard holidays provides holidays following the CJEU determination are that holidays are a complete break from work.

Where employees do not have the appropriate rest and break periods this can result in stress, burnout, heart disease, impact on their time with their families and impact on their ability to undertake sport or other leisure activities.

As matters currently stand it would appear that employee have a certain protections but those protections are being eroded by some employers requiring employees to answer work e-mails or phone calls after hours. In other cases, it is more underhand in that if the employee does not do so, effectively their opportunity for advancement can be limited.

I do believe that for the purposes of providing work life balance there does need to be a requirement that an employee outside of their contracted hours and particularly to ensure that they get the rest periods and proper holidays and do not work excessive hours should be automatically entitled not to answer a work phone or to answer e-mails outside of their contractual hours, except in an emergency situations.

We are currently creating situation where we have 24/7/365 availability. Without a clear and definitive statement that individual employees are entitled to disconnect from work, I believe that this will have a detrimental impact on employees. Where individuals suffer stress or other medical conditions as a result of excessive working this can only result in claims against employers for personal injury being the physical or mental injury sustained due to lack of rest. In addition, where an employees work excessive hours and do not get appropriate rest periods, there is a greater potential of those employees being involved in an accident where they hurt themselves or hurt others. This can be either in the workplace or on the road if they are driving home while excessively tired.

Flexible working has many benefits but at the same time, there needs to be boundaries so that Employee gets appropriate rest and break periods.

Kind regards,

Yours sincerely,

 

Richard Grogan & Associates

Richard Grogan

Solicitors

9 Herbert Place

Dublin 2    

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

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