MEP’s call for an EU-wide Right to Disconnect*

MEP’s call for an EU-wide Right to Disconnect*

The Employment Committee of the European Parliament has called for workers to be allowed switch off digital devices outside working hours without facing any consequences.

In a resolution adopted on Tuesday 5 January with 31 votes in favour, 6 votes against and 18 abstentions the MEP’s on the committee voted in favour of the resolution that EU countries must make sure that workers are able to exercise the right to disconnect effectively. This will include by means of collective agreements. The committee was of the view that this right is vital to protect workers health.

The culture, which is becoming prevalent of always being on or available and the growing expectation that workers should be able to be reached at any time can have a negative effect on work life balance. There is medical evidence that there are physical and mental health issues also. That research goes back to the Working Time Directive which was then introduced in Ireland under the Organisation of Working Time Act 1997.

The committee is calling on the Commission to propose an EU Directive on a right to disconnect. The reason for this is that the right is not specifically enshrined on EU law. The MEP’s were stressing that being able to switch off from work should be a fundamental right permitting workers to refrain from work related tasks and electronic communications outside working hours without facing any repercussions.

This is a non-legislative resolution. It will be voted on in a plenary session in the EU parliament. Once endorsed by the parliament it will be put forward to the Commission and EU countries for implementation as part of future regulatory decisions.

The evidence is from Eurofound that since the start of the Covid-19 pandemic nearly 33% of EU workers now work from home. There is currently no European legal framework directly defining and regulating the right to switch off. The use of digital tools such as laptops, mobile phones, Zoom and Microsoft Team and other means of communications are making it possible to work from anywhere at any time.

The position in Ireland is that the government is looking at a Right to Disconnect.

In Ireland however the Organisation of Working Time Act 1997 does have specific provisions some of these come from the Directive. The first is Section 11 of the Act which provides that an employee must have 11 hours uninterrupted break between finishing work and starting the next day. The other is Section 12 which provides for rest breaks at work. In addition, Section 13 provides that every employee must get a 35-hour uninterrupted break each week. Our domestic Legislation, which is not included in the Directive as a directive provision provides that if an employee has set hours then there is a requirement, if the employee is to be required to be available for work outside those set hours that the employee is given at least 24 hours’ notice in advance. Where the employee does not have set hours then in those circumstances, they must receive a roster a week in advance.

There is going to be significant resistance for a right to disconnect. You may wonder where this will come from. It will come from larger organisations and larger professional organisations in Ireland. Let us look at the IT industry. A lot of those individuals, particularly senior employees, will have to deal with individuals in other Jurisdictions. They will be on different time zones. Many will be dealing with individuals in the United States. The end of the working day is the start of the working day in Silicon Valley. In professional firms particularly in the legal and accountancy businesses and in the accountancy businesses those in the not so much in compliance but in the advisory services equally expect 24/7 availability for individuals who wish to move forward.

If there is to be a Right to Disconnect then it is going to need appropriate Legislation in Ireland which has appropriate penalties in place for non-compliance. This will have to be at a level which will dissuade an employer from seeking to have somebody available to work excessive hours.

There is going to be a clear division between health and safety issues and the work life balance benefits on one side with the requirements of business on the other. The danger is that we get a fudge which will neither be acceptable to the health and safety issues relating to a Right to Disconnect or to businesses. If the rules are clear and specific and can be properly implemented then in those circumstances’ businesses will adapt. The issue in relation to the Organisation of Working Time Act, in Ireland, is that the issue has been more of a fudge. While the penalties can be up to two years’ salary what is really needed is a floor. Invariably in cases before the WRC or the Labour Court there are arguments that individuals are senior individuals, that there is a requirement of the business, that the breaches are technical.

If we are going to have a change then we need to have a proper discussion about this as to how it is going to be dealt with and in what way it will be dealt with.

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*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

Author Richard Grogan

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