Do employees have the right to disconnect?

Oct 07, 2018
By Ailbhe Dennehy 

Back in 2012, Volkswagen blocked all emails to employees' smartphones after-hours. Daimler also operates a scheme called ‘mail on holiday’ that automatically deletes employees' emails while they are on their annual leave. More recently, Porsche has indicated it is considering a new approach whereby any emails sent between 7pm and 6am are ‘returned to sender’. The rationale behind these new email curfews is to honour an employee’s leisure time and reduce work-related stress associated with staying switched on, even after the working day has ended.

Last year, France introduced a new law requiring employers with more than 50 employees to set hours when staff should not send or answer work-related emails. A similar approach has been adopted in Germany and Italy. More recently, the Irish Labour Court awarded €7,500 to Grainne O’Hara who, by sending and receiving work-related emails outside normal work hours, had exceeded her statutory maximum working hours. Significantly, the Court found that the employer, Kepak Convenience Foods, in failing to monitor and curtail her working pattern, as well as failing to keep proper records of her working hours, had "permitted" the employee to work excessively, in breach of the Organisation of Working Time Act 1997.

In today's society, the traditional concept of structured nine to five working hours is giving way to the more fluid models of remote working and flexible working arrangements. In addition, many employers are engaging with employees across multiple time-zones and conference calls are routinely set up outside of core hours to facilitate all participants. With this in mind, the need for employers to ensure a work-life balance and minimise the plague of the "perpetual plug-in" in today's digital workplace is evident.

Notwithstanding the culture shift being seen in other jurisdictions to recognise this right to disconnect, employers should take note that the decision in the recent Kepak case is slightly different. This case was not an example of an employer contacting its employee after-hours. Rather, it was the employee herself who was sending emails outside normal working hours. Kepak’s failure to keep records of the complainant's working hours, coupled with a pattern of permitting the employee to continue emailing out of hours, without any steps being taken to address, this was the nail in the coffin for their defence.

Accurate record-keeping of employees' working hours is a complex task given today's fluid and flexible working arrangements and can result in blurred lines around the concept of a ‘working hour’. But, as the law currently stands, a failure to keep such records and allow employees to work beyond ‘normal’ working hours will likely be detrimental to the organisation in the end.
 
Ailbhe Dennehy is a Senior Associate in the Employment Group at A & L Goodbody.