The Irish government has recently signed a Code of Practice on the “Right to Disconnect”. Within the Code, three rights are set out:
- The right of an employee to not have to routinely perform work outside their normal working hours;
- The right not to be penalised for refusing to attend to work matters outside of normal working hours; and
- The duty to respect another person’s right to disconnect (for example: by not routinely emailing or calling outside normal working hours).
The Code recognises that some degree of flexibility is required from both the employer and employee and that sometimes employees may have to work outside of their typical working hours. However, it also shows a broad commitment towards protecting the wellbeing of employees and offering the right to disconnect as an extra form of protection for employees to assert in the workplace.
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Within UK employment law, employers have a general duty to look after the health and safety of their employees under section 2 of the Health and Safety at Work Act 1924. This duty applies so far as reasonably practicable and covers the mental and physical health of employees.
The Health and Safety Executive (HSE) defines stress as “the adverse reaction people have to excessive pressures or other types of demand placed on them”. Employees could make a complaint to the HSE if they feel that there has been a breach of health and safety at work, citing excessive workplace stress.
Employers also have a duty of care for their employees in civil law, the consequence of a breach of this duty by the employer could be a claim in negligence by the employee, seeking compensation for injury caused by stress. An employer may be unaware that an employee’s claims relating to stress or struggles at work could amount to a disability under the Equality Act 2010, depending on the specific circumstances of the case.
Provided that the employer has actual or constructive knowledge of the disability, there is a risk that the employer is exposed to a multitude of claims for discrimination, including the failure to make reasonable adjustments and discrimination arising from a disability.
Alternatively, if an employee had serious concerns regarding the safety of the workplace they could resign and claim that there has been a fundamental breach of their employment contract which forced them to resign. It’s therefore crucial that employers are aware of the full spectrum of employment rights covering their workforce to best protect themselves against any future claims.
As flexible working practices become increasingly common, employers should adopt good practices aimed at protecting staff wellbeing and a healthy work-life balance.
A policy informing employees of their “right to disconnect” may be a workable option. Good practice could involve reminding employees that even if they receive an email or any other form of contact outside of normal working hours, there is no obligation on the employee to pick this up immediately.
Under the Working Time Directive workers are prohibited from working more than an average of 48 hours per week unless they have opted out or another exception applies. Employers should encourage employees to log off from work when appropriate to do so and highlight the importance of taking regular breaks.
Stephen Moore is partner and head of employment at Ashfords
