Implications for HR of the Code of Practice on the Right to Disconnect

Posted in : Webinar Recordings on 13 May 2021
Caroline Reidy
The HR Suite
Issues covered: Right to Disconnect

In this webinar recording, Caroline McEnery, Managing Director of The HR Suite and HR and Employment Law Expert, discusses the HR implications of the new code of practice on the right to disconnect. In particular, Caroline focuses on:

  • The Organisation of Working Time Act and the right to disconnect
  • Do policies need updated in light of this.
  • Do HR staff need to coach managers to ensure compliance with the code.
  • What about remote/agile workers and the right to disconnect.
  • What about peaks and troughs in workload – are there exceptions for this.
  • What if someone is happy to work extra hours or respond to emails outside normal hours.

The Recording


Rolanda: Hello, everyone, and welcome this morning to our webinar with Caroline McEnery from The HR Suite. Many of you will know Caroline from this webinar series. If you're new to this, then you're very welcome. And I'll tell you a wee bit about Caroline. She is a regular speaker at Legal Island events including the Annual Review of Employment Law. And just as a wee reminder, our Annual Review of Employment Law this year is on the 24th and 25th of November. Caroline hasn’t yet revealed her subject. I won't tell you about it just yet. We'll keep it as a surprise. This year's Annual Review again will be over two days on the Hopin platform that we used last year, which has been absolutely brilliant. We've had lots of engagement and interaction and lots of people have loved the networking option and it'll be new and improved this year.

And this year's Annual Review I have to say I'm really looking forward to because it's been a really exciting year for employment law in Ireland in terms of between the codes of practice and new legislation, it's been a really good year. So looking forward to that and seeing you back, Caroline.

So just a wee quick introduction to Caroline for anyone who's new to the series. So Caroline is managing director of The HR Suite, a consultancy business that she set up. She's a past member of the Low Pay Commission and also an adjudicator in the Workplace Relations Commission, which itself has undergone a fair bit of change at the minute. So, it's exciting times there. She completed a Master's in human resources through the University of Limerick. She is CIPD accredited as well as being a trained mediator. So good all-rounder really.

Prior to setting up The HR Suite, she's worked for over 20 years in human resources in the Kerry Group and in the retail and hospitality sectors where she was the operations and HR director of the Garvey Group prior to setting up The HR Suite in 2009. Caroline speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that presents for employers and employees.

So, in this month's webinar, Caroline is going to look at the new Workplace Relations Commission code of practice on the right to disconnect. We've got a few and what the implications of this are really for HR professionals in terms of implementing it and ensuring that it is implemented and carried out appropriately. We've got some questions in. But if you have any questions, please use the question box just on your screen there. We'll try and get through the questions after Caroline. So over to you, Caroline.

Caroline: Thank you so much, Rolanda. And when you say I've 20 years' experience, I've never changed, I've never moved from the 20 years because I feel that sounds old enough for anything. So I'm going to stick with that for another 20 all going well. I'm delighted that so many of you could join us this morning to cover this really important area and this new code of practice that has been launched I suppose. I want to maybe give you a little bit of background and a little bit of context to the legislation to start with. And then I'm going to go through some key areas associated with it. And as Rolanda said, delighted to answer any questions that you may have and delighted to doing relation queries as they come up.

Organisation of Working Time Act

So I suppose the backdrop is we're all familiar that we have the Organisation of Working Time Act in Ireland, and that's our steadfast fundamental around working time, which is from European legislation drafted into Irish legislation, and that provides us with really strong foundations in relation to managing working time in Ireland. However, in the most recent times, the digital age, I suppose, has meant that due to the fact people have email on their own devices, people are working remotely, people are working across different time zones, etc., the right to disconnect has been something that has got a lot of publicity. I suppose the backdrop is in France, it started this that if you had a company of more than 50 employees, you needed to put in place a right to disconnect. And in many companies in France, you basically would not be able to send emails after, for example, 7:00 in the evening and before 7:00 in the morning.

I suppose, personally, I think that we need a more pragmatic approach than that even though I know a lot of corporations in Ireland and clients of ours have implemented something similar here in Ireland. At the end of my emails, when I send emails, I have a little footer that says, "I send emails when it suits my flexibility. I don't expect you to answer until during your working time. I sent it to suit to me and I'm respecting your time." And I think that's a really good starting point to set the tone about respecting people's time and that's what this code of practice is designed to do. And I think it's a very welcome code, which puts a spotlight in the whole area of the importance of respecting people's working time and people's time outside of work. And that's what it was designed to do.

It's important to note also that this is a code of practice. And a code of practice is not a legislative piece of legislation. But it gives very strong guidance to people in relation to what they should and what they are expected to do in line with best practice. But it's important to note that the code, if it's the case that as an employer you don't follow the code, that can be used in a court setting as evidence. So in effect, really, because of the fact that the WRC and the Labour Court in Ireland primarily in relation to breaches of this type of legislation, they've given you a very strong indication that they expect that we do have a policy in relation to the right to disconnect and also that we set a culture in relation to the right to disconnect.

So, I suppose the fact that the boundaries are so much more blurred means, as HR practitioners and as business owners, we need to make more effort at having the boundaries in place.

Key Features of the Code of Practice on the Right to Disconnect

So when we talk about the code, there are three fundamental rights that are core to the code. And they are the right for employees not to be expected to routinely perform work outside of their normal working hours. And like I would always say an exception is an exception once it's an exception. But oftentimes, it's not. And there's an expectation that the person is constantly on and is expected to respond to emails as soon as they come in. This code clearly outlines that there needs to be clarity in relation to the fact that as an employee you're not required to routinely reply to emails unless it is that exception. And that exception is important that we don't have carte blanche because there will be times that it will make sense for us to communicate, for example, in the middle of COVID. There's been emergency updates we've needed to send employees to give them a heads up in relation to whatever might be happening in the workplace. So I think that's important just to be clear.

The other core fundamental pillar of the code is the fact that employees won't be penalised for refusing to attend work outside of their normal hours. So, for example, if there was an additional staff briefing or something that was happening outside of their normal working hours, that in no way would they be negatively penalised because of the fact that they haven't attended that event outside of their normal hours.

Again, the whole employment relationship is based on trust, give and take, and collaboration for the overall good. So you would hope that as an employer the person's getting lots of notice in relation to the fact that you may need them to attend events every so often, etc. And again, the importance of building that into the contract employment is even more important now. Because, again, otherwise, it wouldn't be deemed to be part of their normal hours. So I think we need to not alone update our policies, but also the robustness of our contracts in relation to working time needs to be looked at.

And also, I suppose, the other key element to this code is to ensure that we don't routinely contact people outside of their working hours. So that's why, as I say, the companies prevent emails being sent to somebody's inbox after a certain time of the evening and before a certain time in the morning. Obviously, for some organisations, especially those that are across different time zones, that won't make sense. But I personally really like that footer on your email, which kind of I suppose gives you that really positive indication in relation to that. And I'll pop that up on our social medias later on today. So if any of you are interested, you can copy it from there.

Failure to Comply with the Code

I suppose the next element to look at is that failure to comply with this policy, as I said, isn't an offense in itself, but it is admissible by the WRC and by the other courts. So in effect it is a requirement. So what is the requirement that you need to do? And I suppose, for me, the key elements of what you need to do are embedded already in key elements of the legislation already. And I'm going to focus on the key ones that are most relevant. So the first thing is the Organisation of Working Time Act. And what the policy needs to reflect is the code is also saying that the employee has a responsibility now to flag any issues in relation to the fact if there is breaches of the policy happening or if they have concerns.

And this wasn't enshrined in the Organisation of Working Time Act previously. In the Organisation of Working Time Act, the full responsibility rests with the employer in relation ensuring that a person gets their breaks and gets their rest breaks and when they finished one yesterday and when they start their new shift tomorrow. So that's a game changer in relation to that.

Rest Breaks

The other elements are the fact that the Organisation of Working Time Act fundamentally states, "We need to keep records of people's breaks." And in many settings, there is clock machines in factories or in service-oriented industries. Well, in many professional services, we don't necessarily have a clock system or a record system. And in those settings, the norm would be that you would outline the break entitlements people have and that you would give them set times. And if they don't get their break, it's really clearly outlined that they need to let somebody know and you outline who they need to let know.

In some WRC inspections, that won't be acceptable or that won't be enough. And also, if it's contested that somebody wasn't getting their full breaks or wasn't getting their rest time, etc., then ultimately, remember, the burden of proof is on the employer to prove that they have been. And you will possibly remember the Kepak case that happened where it went to the Labour Court where a lady who was a senior executive in Kepak claimed that she was expected to respond to emails at 11:00 at night and other times outside of her normal working time. And she got compensated for €7,500 euro for that. And again, it was really obvious in that scenario that the employer was expecting that she would respond to those emails and wasn't giving her the appropriate rest breaks.

Record Keeping

So the record keeping element in the Organisation of Working Time Act rests firmly with the employer. In this new code of practice, it basically put some responsibility and onus back on the employee to flag and the fact that if they're not getting their entitlements, they need to come and let you know. Obviously, the reason for the Organisation of Working Time Act is primarily based on health and safety. And I suppose that health and safety obligation to ensure people get appropriate rest and recuperation during the working day in an effort to prevent accidents, in an effort to ensure people are rested and they get that time away from screens and get that opportunity to take a break to replenish. So that, again, is enhanced even further in this code in terms of the right to disconnect.

And the Miscellaneous Provisions Act is also referred to as part of the relevant legislation as is the terms of information. And the terms of information ultimately that's key in relation to the fact of updating your policy, updating your contract, which requires you to address this piece in relation to working time. So, again, there is some work from an HR perspective in terms of becoming compliant in relation to the code.

Policy on the Right to Disconnect

So, when we talk about the practicalities then, ultimately, this is trying to foster a positive culture that respects reasonability and also respects work-life balance and people's personal time. The other element of what it's trying to do is to put further boundaries in relation to email, in relation to technology, etc. So, it's important that when you're drafting your policy that you include and consult with different employee groups within the organisation.

We've drafted a policy draft for our clients to give them a really good starting point, which they can then use as the basis of the consultation process. And I suppose that because you're going to have different groupings within the organisation, they may come up with other considerations that we haven't taken into account but it's important as part of that process we take that into account. And so that engagement and consultation would normally take the form of setting up a small working group in relation to the policy, getting their input, getting their contribution, and signing off the policy accordingly and then distributing the policy to all staff to make them aware of it.

Training for Line Managers on Code

I suppose with policies comes the need to always upskill and cause coach managers to ensure that they're compliant with the code. And what often can be a real challenge is to ensure that managers are aware that they have to ensure compliance with the code and with the Organisation of Working Time Act fundamentally. And that's where we need to ensure that if managers see an employee who is typically sending emails at all hours outside of work, that they talk to that person to say, "Look, Caroline, we don't expect nor want you to be sending those emails." And employers will often come back to me and say, "Well, look, we've spoken to Caroline and she's still not following up. Remember the importance of the paper trail and make sure that we follow up with Caroline in writing to explain that that's not what we want her to do and then ultimately try and see how we can identify better ways of working, and again, familiarise her with the policy, etc."

Because it's not enough for us to just say, "Well, she knew there was a policy in place," or, "She knew in her contract that these were her break times." We have to do more than that and if we see obvious breaches that are happening. And that was very evident in the Kepak case where it was very obvious that breaches were happening and there was expectations that the person would have to log back in that evening, etc. And so that's important to note.

The other key point to note is, it doesn't matter what level in the organisation you are. This applies to all employees. And, again, a lot of since this code has come about, people have said to me, "But surely it doesn't mean that our senior managers are covered." And absolutely, the entire workforce is covered.

And what I find personally is you will, in turn, have a better work-life balance, if you can ensure that people when they're at work are very productive and when they're outside of work, often they get that opportunity to be off. And in line with when the government launched this policy, they also launched the consultation into the remote working policy, which closed on the 7th of May in terms of the consultation process. So we know that there is going to be guidelines and a new code coming in relation to that remote working strategy which the government have outlined that they're going to be working on in the coming months. And I think it's in keeping with the ethos of the fact that work has become more agile and more remote that we now need to push better boundaries around that.

And what's very positive about this code is that collaborative approach that it's expecting the employee to flag issues as much as the organisation to put structures in place. It's also important that we don't have the code as a barrier to facilitate people's flexibility. Because up to now you potentially have employees who would say, "Look, I'm going to need time off in the middle of the day to do X, Y, Z. But I'll work that time back tonight." And in doing so, they may not be getting their 11-hour rest break. So you need to make sure that if these requests are now happening, that you're making sure that you're following those up in writing and they need, again, to be the exception rather than the norm.

And I think that's something that for a lot of organisations and a lot of employees is really challenging because that give and take in many organisations where people take their breaks when they're ready to take their break, etc., this code and the Organisation of Working Time Act doesn't allow that as ad hoc-ness that it requires for the records to be kept and for the codes to be followed.

Recording Working Hours

So other considerations is the piece in relation to how do you record time for people who may be working remotely. And for a lot of organisations now, they're looking at timesheets. They're looking at time recording systems, etc. And I was doing an interview on one of the national radio stations yesterday and they were discussing the fact that now there's excessive monitoring of employees who are working remotely by using cameras, etc.

So ultimately, for me, the balance of trust has to be maintained. So we need to trust that our employees are available for work when they are supposed to be at work during their working hours. And they need to pre-agree with you if they need to change that. And that you then as the employer respect the fact that exceptions will happen when there are troughs and peaks in relation to workload. And there are exceptions in any of the legislation, either the Working Time Act or the code to facilitate this. But that needs to be considered as an exception rather than that being considered as the norm. And it's really important that you consider . . . A lot of people will say, "What about people who are happy to work extra hours outside of their normal hours and they're happy to respond to emails, etc.?" Remember, ultimately, you as the employer have the responsibility of that enforcement. So it's not a case of leaving exceptions in that regard.

And in Ireland, we've no option in any of our legislation to opt out of our statutory rights. So I think what we do when we're drafting our policy is make sure that your culture of flexibility, make sure your culture and ethos of facilitating people being a two-way street that they support the business when there are peaks in terms of work. And also we facilitate the person when they need a personal time. And I think that has to be at the core of this policy because this policy is not designed to take in any way from all the good practices that we've been working on, which have probably been fast tracked very exponentially in the COVID period because people have never had more juggling to do or more challenges in relation to working time, work-life balance, juggling, etc.

Drafting a Right to Disconnect Policy

So, the few practicalities then in relation to this, ultimately, we need to draft the policy. And in looking at what does your policy look like, there are a few key elements that you want to ensure that you include, and you want to ensure that you have. And your policy, remember, needs to be done collaboratively and with the stakeholders within your business. But I'm just going to run through some of the key headings within your policy that you want to consider. And ultimately, this policy in terms of considering it needs be reflective of roles people are doing as well because oftentimes there is a difference in terms of the type of people and the roles people will be doing. So for me, the key headings are what is the purpose of the policy? So the purpose of the policy is to ensure that we respect people's time outside of work. We want to ensure that people have a positive work-life balance, which is key to retaining our employees anyway.

The next key element of the policy is to outline what are your employer and what are your employee obligations. So remember, your key employer obligations are to ensure your managers are trained and monitor the fact that people are not expected to routinely work outside of their normal hours. And that includes sending emails, etc. So, again, making sure that we have an ethos of that expectation not being the case. We don't expect them to routinely perform the work. We don't penalise them if they don't come to work events outside of working time and also that we respect the fact that their time outside of work is their own personal time.

The employee obligations should be clearly outlined in the policy to reflect the fact that the employee has an obligation to flag any concerns or any issues in relation to breaches of not getting their time as outlined in their contract of employment and as outlined in the policy. And making sure that that communication is proactively done is really important in relation to clarity for the employee to know that they have a key role in relation to that.

The role of managers and training managers in relation to this policy and this code I feel is very important and emphasising what normal working hours are because for some employees who are working across different time zones, what does that typically involve? What does that typically mean? And it must be clear and explicit in relation to outlining those elements to it.

Ensuring Adherence to the Code

I suppose the key area that this is likely to be breached is not in terms of people's physical work. It's likely instead to be emails and communications outside of work are requiring them to review documentation, etc. So you need to call out the different elements of the communications, meetings, etc. What does that look like?

And, again, that doesn't mean to say that they can facilitate a meeting on occasion that happens outside of normal working hours. But then you're clearly calling out, "Look, it's optional for people to attend. We respect the fact that it's been scheduled at a time outside of people's normal working time. And we're trying to oblige people as best we can. But this is an event, or this is training, etc., that we're hoping people can commit to."

Remember, the clarity in relation to the fact that no victimisation can occur if somebody refuses to attend work or to look at emails or do any of the extra outside of our engagement. So, again, that must be clearly outlined in my view and also the importance of where do they raise concerns in relation to potential breaches of the policy.

And I would also suggest that it will be really good practice to use the suggestive text that I'm suggesting at the end of people's emails because what that does, and I appreciate people have loads of things at the end of their emails. But what that does is it really emphasises the fact that, we, as an organisation, don't expect that you're going to reply to whatever it is that we send outside of hours. We basically are sending it when it suits us. And I think that's a very important element of it.

And it's important also that employees understand that now their obligation under this code is to take reasonable care to take responsibility for their own time and also in terms of that of their colleagues. So, again, the scheduling of meetings and cooperation with the working time records and being mindful of other people's time as they potentially send emails outside of working time.

I suppose that's particularly important where you have people who may be working three days a week or they may be working mornings only, etc. That, again, you're respectful of the fact that you're sending the email when it suits you but you're not expecting them to respond to it. And I think that's really important. And that's coming up quite a lot in relation to issues where it's now being flagged, not alone under the organisation of working time, but it's also being flagged in relation to discrimination where people are saying, "Look, I'll finish at certain time because I'm preparing to leave or “I have get my children." And I see people scheduling the meeting when they know I'm not there. So I think especially when people flag it, it must be and it's really important to ensure that that occurs.

So remember also the overall arching piece in relation to any policy is the culture and the leadership involvement in setting the tone in relation to what is acceptable within the organisation. So the right to disconnect policy shouldn't only be something that you add into the staff handbook. It should be something that is complementing the dignity and respect at work. And all the other confidentiality, data protection, all the other policies that are so important. And in our last webinar, we covered the dignity and respect at work policy in line with the new code of practice for bullying, which is so topical and so, I suppose, complex in relation to ensuring that you're compliant with it.

And no different to that code around the code of practice for bullying. This code equally and the code in relation to the right to disconnect is embedded in health and safety legislation, which gives them more weight when we are proactively trying to integrate them into the organisation. But it's also very complementary in relation to our health and safety and our well-being strategies.

Breaches of the Code

So, obviously, if employees have issues in relation to breaches, they can take a claim under the Organisation of Working Time Act to the WRC. But obviously you would hope that in your policy you outline the obligations that they have to flag internal issues initially. And obviously, they will be investigated and remedied because like most policies, it's very important that there's an internal route and avenue to try and address and resolve issues internally, in the first instance and only go external if all the internal avenues have been exhausted.

So I suppose to summarise, and then I'm going to pass over to Rolanda, who is going to go through some of the questions that you've submitted, is this needs to be a cultural shift and this needs to be something that is very much reflected from the leadership team down with it to ensure that it is the culture shift because in many organisations you will hear people say, "They work crazy hours in that company. That's just the way it is there." And that isn't acceptable in line with the Organisation of Working Time Act nor is this acceptable in line with this code. But also now it's unacceptable from a retention and a morale perspective because employees just won't accept it.

The other key element to remember is in line with your focus now on a blended approach or more remote working, it's really important that we're conscious that how are we managing people's time, in terms of them working remotely where we don't have the same visibility, to ensure that, as I say, people are available for work is what we expect, but also we expect that people are taking their breaks and that's really important. But there's a lot of commentary that people are not taking their breaks and that they're spending much longer hours at work. So, it's very positive and proactive timing that we start to address that now.

The other I suppose key elements of the code to remember are it's mostly communication, i.e., meetings, emails, reviewing documentation, etc., that there are potential breaches in relation to this. And remember, there will be peaks and troughs and exceptions or exceptions once they are exceptions. And, again, in jobs, for example, like accountants for year-end, etc., it should be reflected in the contract that that will be part of your normal hours to work additional hours during those peaks, which are typical and expected within the business. So that's important to reflect and that is permitted within the code and within the legislation because the code can't be reviewed on its own. It needs to be reviewed in line with the Organisation of Working Time Act, particularly the terms of information and all the other legislation that I've touched on today.

So, I hope that that has given you some good guidance. I'm happy to pass over to Rolanda to answer your questions. And hopefully, as I say, you've got some good tips in relation to this very important code.

Requirement to Work Outside Normal Hours

Rolanda: Okay. Thank you very much, Caroline. I have to say we've been inundated with questions. So I'm going to try and summarise and group them a wee bit. One of the questions we got in beforehand was about and it kind of deals with the issue of occasional work outside particularly where, for example, you have customers in the U.S.

Irish staff will occasionally deal with emails, etc., outside normal working hours in order to respond to the client. And I suppose the difficulty is for a lot of companies in Ireland, this right to disconnect policy concept doesn't maybe apply in other countries. So how do employers deal with those situations?

Do they need to be a bit tighter with them? And saying that if you do have to deal with things outside normal working hours, you will get compensated for your rest? Or how do they deal with those? Because for some people, it may be very occasional but for some people it may be more regular.

Caroline: Okay. Great question. So what I would say as the starting point is to make sure that the person's contract reflects under their working time the fact that as part of this job it is normal and expected that you will have to answer these types of queries and you will be required to do ad hoc work outside of your normal hours. You facilitate them in line with business requirements. And it is something that isn't unexpected. It's something that's envisaged. Also the code allows for unexpected once it's part of the person's job. And ultimately, I suppose you're going to have the avenue where if it's part of my job that I'm dealing with American customers that I will have to answer those queries as required, then that's perfectly fine.

Which is very different to saying to me, "Look, Caroline, there's a client that would like you to deliver 'The Right To Disconnect Webinar' at 7:00 in the evening," and I never normally work evenings, then I can refuse to say, "Look, evenings don't suit me." And I can't be penalised for that. So there's a distinction between the two examples. One being my job is to work with the American customers. So we envisage that that will have to happen. And the second example is it's not envisaged and it is an exception. There's no problem in you asking, but I can't be penalised if I refuse.

Contact Outside Normal Working Hours by Line Managers

Rolanda: Okay.

And quite a few people have sent in questions about employers contacting people outside working hours to cover for sick staff who are off sick and that sort of thing. And I think the code does make relevant reference to that on page seven, just that there will be occasional times you'll have to say, "Look, Caroline, Rolanda is sick today. Can you come in?" And that's normal that kind of contact.

Caroline: Absolutely. And again, one of the key things in employment law we always talk about is reasonableness. And we need reasonableness to prevail here. So, again, when we're drafting our policy, which brings the code to life within our organisation, I would be putting that in. And I will be putting in also like the American example you used there to say, "Look, there will be times that you will have to deal with our American colleagues, our customers, etc." And that we consider to be normal. And we'll keep it to a minimum but there will be occasions that due to your expertise, you will be the person who will need to do it. Same applies that in relation to sick leave, in relation to all of that that there will be potentially a need to facilitate that.

So, again, there are practical and reasonable measures. And I think we should call those out within the policy. And with all of those call out as well, look, if as an employee you don't think that the request is fair and reasonable, please let us know. In line with the code, you have an obligation to let us know if there are issues because in organisations, you could have one manager in one department who may be acting differently to the rest of the organisation. And we need the confidence from the employee perspective to flag that.

Remember the key elemental of this code as well is saying nothing that isn't already in the Organisation of Working Time Act in terms of legislative. All it's doing is fleshing it out in the, to put it into context with the modern world and the work we live in where there are emails sent at unusual hours sometimes and people are going to be working across different time zones, etc. So, again, it's making sure that we're respectful and reasonable and there's no victimisation or negative penalisation as a result of the person's unavailability to do some of the outside of work activity.

Working Excessive Hours

Rolanda: And you mentioned, Caroline, during that where some people are working excessive hours. Have they spoken to you about that?

What do you do when someone continues to work excessive hours?

Somebody asked about what do you do when somebody continues to work the excessive hours? And, I mean, an employer could say, "Well, look, that's your choice," but at the same time that could be leaving an employer open.

Caroline: Absolutely. And like, I suppose, like, in HR, there's never a problem until there is a problem. And then when the problem happens it's a big problem if you haven't been compliant. So I suppose the firm responsibility in the Organisation of Working Time Act sits with the employer. So that's why the paper trail of your communications with the employee to say, "Look, Caroline, it has come to our attention that you are responding to emails in the evenings outside of your normal working hours. We weren't aware. We now are. And in line with that code of practice, we need you to ensure that you don't do that on a regular basis." Obviously, in an emergency or in an exceptional circumstance, we do. But then I would start getting into the why.

So normally it's the person's workload. It might be their productivity. They might need to go on a time management course. Like there's always a why and we need to get to the why. And again, that's part of our responsibility. We can't just say, "Well, you just stop working those hours." And that's why I highlighted for me the importance of drafting the code of practice into your policy to make it live for your organisation. Because we all know as we sit here what is typical for our organisation may be very different for another organisation. So make sure that you call out those different scenarios when you're drafting your policy to facilitate that.

Exemptions from the Code

Rolanda: And you mentioned the things you should include in your policy, and then the code itself that does have on page 11 and 12 some of the headings that you should include in the policy. There's a couple of questions about that. Now, one interesting question, Caroline,

Are there any categories of staff or sectors that are exempt from this code?

I couldn't find anything in the code there about that.

Caroline: Yeah, I suppose there are exemptions in the Organisation of Working Time Act for specific types of jobs. So those types of jobs will still remain, I suppose, because the legislation is already addressing those. However, I suppose this code is designed for the digital world of people being turned on all the time and the impact that it has on wellbeing and productivity, etc. So I think it's trying to reflect that. So there's no call-outs in terms of specific professions or exemptions. There are exemptions in the Organisation of Working Time Act that will still follow through because the legislation hasn't changed. The biggest thing for me is that you're bringing this into the current world of remote working of digital devices.

And again, like for the year that's been, HR professionals have never been so busy updating policies and updating procedures and updating the staff handbook. Like it's a really good opportunity to have all those things updated. Because shortly as we return to what is the new normal, remote working in the crisis stage that has been is going to transition into a more normalised remote working that will become more blended, that people are going to do a transition between working in the office and working from home, etc. And as organisations are preparing for that transition, all these good practices around the right to disconnect, around dignity and respect, etc., it's facilitating HR professionals to bring to life what is already there in a very meaningful way to help with retention, to help with morale, and to help with work-life balance.

Staff Working ‘On-call’

Rolanda: Okay. Thanks, Caroline. And just maybe one last question. There's a couple of questions that are similar really where people have been employed and you have mentioned this, maybe they're on-call, part of their job is on-call and this one question that somebody is on-call one week in 12. They don't get paid for that time that they're on-call but they may occasionally be required to respond to things during the night. There's other questions about three, seven, five.

So where contractually, you are required to be on-call for one week in so many or over a weekend, then does the code override that contractual arrangement?

Caroline: So I suppose in a complete . . . we don't have time to get into the legislative basis of on-call. But, typically, I suppose that it would be there's separate conditions in relation to on-call, there's separate conditions that if somebody is called out that they get the compensatory rest, etc. And that's already built in in your organisation. That's part of what you do. Normally, there's compensation linked to it as well. And now what I would say is the code needs to complement that. And ultimately, there is legislative basis for all of this already. So the legislation hasn't changed begin be in relation to all of that. So whether it's call-out, whether it's breaks, whether it's maximum hours, whether it's rest breaks between when you're finished one shift and start the other, there hasn't been any legislative change in relation to the working time.

I think what it has done is put a spotlight on reminding us that maybe we weren't as compliant with the Organisation of Working Time Act that is very engrained in our employment legislation and is one of the pieces of legislation that often I suppose maybe the detail of it is overlooked. So I think, in that case, Rolanda, it's definitely back to what the Organisation of Working Time Act say, "That doesn't change with this code. It just complements it."

Rolanda: Okay. Thanks, Caroline. There are some questions, I'm sorry we couldn't get to all of them. They're just so many, but I will send them on to Caroline. Now just before I go, on your slides there on the screen, hopefully you can see we've devised a new eLearning program. So this is a way I suppose for organisations to raise awareness of this with all staff. There's a special webinar attendee offer of €10 years per staff member. We will send some information in the follow-up email. But if you want somebody to come back to you directly on that, if you could type yes into your question box now and a member of the eLearning team will be in touch with you.

Now Caroline did mention as well that she has some email wording or email tagline. Her contact details are there if you want to follow up with Caroline on that. I think she said she put it on our website. Also that The HR Suite has developed a policy on this, and you're welcome to follow up with them. I'm sure they'll give you a very reasonable rate for that policy and you're welcome to do that. And that just really brings us to the end of our webinar. So thank you all for attending. Our next webinar with Caroline is next month. I think it's the 10th maybe. Is it? I'm sorry I haven't got that date down there. Tenth of June. But our next webinar is with RDJ on 21st of May and you'll get details of that on our website and you can see the subjects we're going to look at there. So once again, Caroline, thank you so much for your time.

Caroline: My pleasure as always. Thanks for joining us.

Rolanda: Okay. Bye, everyone.


This article is correct at 13/05/2021

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline Reidy
The HR Suite

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