Humphreys considering employee 'right to disconnect' law

Heather Humphreys, the business, enterprise, and innovation minister, The Minister for Business, Enterprise and Innovation has announced that she is considering the introduction of the so–called right to disconnect.

Humphreys considering employee 'right to disconnect' law

Heather Humphreys, the business, enterprise, and innovation minister, The Minister for Business, Enterprise and Innovation has announced that she is considering the introduction of the so–called right to disconnect.

It is a potentially significant change to existing law — and the implications for employers are significant.

The Government’s proposal is based upon an initiative introduced in France in 2017, which itself had its origins in a decision of the French Supreme Court in 2001.

In that case, an employee was accused of misconduct by not being available on his mobile phone outside of working hours.

The Supreme Court ruled the employee was under no obligation to work at home in the circumstances of the case.

In 2017, the French government introduced a legislative measure giving statutory effect to the Supreme Court decision. The French Labour Code now provides that employers must honour an employee’s “right to disconnect”.

An employer must establish mechanisms for “regulating the use of digital tools” to ensure respect for rest periods and leave, as well as personal and family life.

Employers are obliged to draw up a charter setting out how the “right to disconnect” works in practice and, in essence, the measure will theoretically allow an employee to refuse to work outside of normal office hours.

French politicians supporting the measure pointed to an increase in the incidence of work-related stress in recent years. Indeed, one referred to employees physically leaving the office, but not leaving work: “They remain attached by a kind of electronic leash — like a dog.”

In France, the measure has not been without its critics — employers have pointed out that many industries need to deal with international partners in other time jurisdictions.

Differences in timezones, for example, mean it may be detrimental to a company’s interests to allow employees to refuse to work outside of normal working hours.

Another notable point in respect of France’s measure is that there is no penalty for violating it. In other words, an employer might choose to ignore the provisions without sanction.

So, what lessons can Irish legislators learn from all of this? There’s no real data on how effective — or not — the measure has been in France; the legislation is still, after all, relatively new.

However, the signs are not necessarily optimistic. In the past, France has attempted to regularise working hours for social policy reasons. A good example is the fact that on paper, France has a mandatory 35-hour working week. A study conducted in 2016, however, suggested 71% of employees work more than 35 hours each week.

There is no doubt that achieving a reasonable work-life balance is a positive thing. However, it’s debatable whether the “right to disconnect” is necessarily the best way to achieve this.

Enforceability is likely to be a major issue — unless our own Government takes a different path to France and imposes an actual fixed penalty upon employers for refusing to honour the “right to disconnect”, the proposal could have negligible effect.

On the other hand, such a move would be an extremely serious one for Irish employers — employees here are largely well-educated on their rights. If some form of penalty is introduced by the State, that could have a forest-fire effect.

Employers would have serious concerns about financial penalties being introduced.

Aside from the fact that prohibiting working outside of core contracted hours could have a chilling effect on flexible working arrangements in place in workplaces, there is the fact that many commercial organisations won’t be able to compete effectively if they cannot deal with customers in other jurisdictions because of timezone differences.

The “right to disconnect” isn’t necessarily a bad thing but it’s either likely to be largely aspirational or mandatory in nature, which could meet with considerable resistance from employers and, seriously affect competitiveness.

Patrick Walshe is partner and employment law expert at Philip Lee Solicitors

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