Out of Hours Communication: The Right to Disconnect
In line with government health guidance and roadmap for the re-opening of business activities, Employers and Employees alike moved quickly to flexible working arrangements for over the past year. While some Companies have remained in a remote working space, others are introducing a hybrid form of remote and office working.
Since the outbreak of the COVID-19 pandemic, working from home has increased by almost 30% which is expected to remain high or even rise. Research by Eurofound, an agency of the European Union, indicates that people who work from home on a regular basis are more than twice as likely to exceed the maximum of 48 working hours per week, compared to those working in the office. Almost 30% of those working from home reported they work in their free time every day or a number of times a week, compared to less than 5% of office workers.
With the prospect of remote working becoming more normalised, Employers must ensure safety, health and well-being are a priority as a company’s legal duty of care still applies when Employees are working from home. Employers need to be mindful of the employee’s right to disconnect as remote working has the potential to distort the boundaries between work and home spatially.
In August 2019, the Government announced their intention to introduce legislation which would ensure Employees have the right to disconnect and no longer feel the obligation to check work-related emails outside office hours. A Code of Practice on the ‘Right to Disconnect’ has been proposed before the Dáil which if passed will amend some statutory provisions of the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and application of the Safety, Health and Welfare at Work Act, 2005.
Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020
Section 15 of the Organisation of Working Time Act, 1997 is amended through the provision of:
- the right to disconnect from work related e-mails, texts or calls outside of working hours.
- implementation of a right to disconnect policy establishing hours to disconnect
- the production of a report on the right to disconnect detailing ways to:
- minimise out of hours contact.
- establish a standby allowance.
- deliver an overtime payment.
- ensure all working time does not exceed 48 hours.
This amendment to the Act will make it an offence for an employee to be reprimanded, punished, or subjected to disciplinary action if they ignore a work-related communication sent outside of normal working hours, unless already agreed under the terms and conditions of a relevant right to disconnect policy.
The responsibility for Health and Safety at work rests with the employer regardless of whether an employee works remotely therefore it is good practice to ensure employees know how to protect themselves from potential injury and ill health during this time and that they understand their health and safety obligations whilst working remotely.
On April 1st 2021, Tánaiste and Minister for Enterprise and Employment Leo Varadkar signed the new code of practice on the right to disconnect meaning the code comes into effect immediately and will be admissible in evidence in proceedings before a court.
The Code states that the Right to Disconnect Policy should be referenced in an employee’s contract of employment in the same way as any other company policy would. The Code also states that, where appropriate, a company’s Policy should recognise that certain businesses and roles do not always operate on a standard hours basis but in a manner responsive to customer needs where flexibility is required to meet business needs, and as agreed in the employee’s terms of employment. Employers with operations in multiple time zones may consider putting agile working arrangements on a more formalised footing with a view to ensuring balance between the need for clarity in relation to employees’ ‘normal working hours’, and the employer’s operational needs.
It will be important for employers to ensure that the policy is ‘equality proofed’ in order to avoid unintended negative consequences and to ensure that it does not result in employees being directly or indirectly discriminated against on any of the protected grounds under the Employment Equality Acts 1998 - 2015.
Related Articles:
Parent’s Leave increases to 5 weeks
Budget 2021 announced that parent’s leave is to increase from 2 weeks to 5 weeks. It is expected that this change will be effective from April 2021.
What is Parent’s Leave
Parent’s leave entitles each parent to additional leave during the first year of a child’s life / first year of an adoption placement. It is generally not permissible for parents to transfer the leave to the other parent. Parent’s leave may be taken as one block or in single weekly blocks. Parents should give at least 6 weeks’ notice of their intention to take the leave.
Where an employee is entitled to take another form of family leave, such as maternity leave, additional maternity leave, adoptive leave or paternity leave, the parent’s leave must start the day immediately following the end of the appropriate family leave.
Pay and other benefits during Parent’s Leave
Eligible parents will be entitled to statutory parent’s leave pay, currently €245 per week. Employers are not obliged to top-up this payment.
Employment rights are preserved during parent’s leave, including annual leave which will continue to accrue.
Covid-19 mandatory policy now available on Bright Contracts
The Return to Work Safely Protocol (“the Protocol”) sets out essential measures employers must take to help prevent the spread of Covid-19.
Under “the Protocol”, all employers must put in place a Covid-19 Response Plan. A Response Plan is best thought of as a comprehensive, catch-all document that deals with all points of relevance relating to COVID-19 and the workplace. This will deal with issues such as hand hygiene, respiratory hygiene and physical distancing, amongst others.
The Bright Contracts software has now been updated to include a template Covid-19 Response Plan. This document is the perfect starting point for any small employer getting to grips with Covid-19 and preventative workplace measures.
Download Bright Contracts here.
Other Requirements of the Protocol include;
- Nominating a Worker Representative to help ensure measures are implemented and adhered to.
- Train all staff on Covid-19 and preventative measure being taken
- Ask all staff to complete a return to work form
The full Protocol can be found here.
Returning staff to work
The Government’s “Return to Work Safely Protocol” sets out a number of measures employers must consider as they reopen their businesses and bring staff back to work safely.
In terms of bringing staff back to work, employers should put in place a number of measures, including:
-
Employees must be issued with a pre-return to work form to be completed at least 3 days prior to their return. In completing the form, employees will self-declare as being fit to return to work. If a worker answers Yes to any of the questions, they are strongly advised to seek medical advise before returning to work. A template questionnaire including all required questions can be downloaded here.
- Induction training should be provided for all workers. At a minimum it should include:
- up to-date advice and guidance on public health
- details on what a worker should do if they develop symptoms of COVID-19
- information on how the workplace is organised to address the risk from COVID-19
- an outline of the Covid-19 response plan
- clarify points of contact from the employer and the workers
-
any other relevant sector specific advice
-
Following a risk assessment, employers should arrange for the necessary controls to be put in place to prevent the spread of Covid-19 in the workplace.
-
Temperature testing should be implemented in line with Public Health advice.
-
Review and revise existing sick leave policies and amend as appropriate and in line with Covid-19 procedures. A revised sick leave policy is now available in Bright Contracts.
The full Return to Work Safely Protocol can be viewed here.
Layoff and Short-time Working under Covid-19
Under the Redundancy Payments Acts 1967 to 2014 a lay-off situation arises if an employer is unable to provide work to an employee for which they are employed to do. A short-time situation arises if an employee's weekly pay or hours is less than 50% of their normal weekly pay or hours due to a reduction in the amount of work to be done for which they are employed to do.
Continuity of Service
Continuity of service is not normally affected by lay-offs. For example, if an employee has been working for an employer for 10 years and is laid off temporarily, their 10 years’ service will remain intact.
Annual Leave
Employees working short-time will continue to accrue leave for the hours they work.
Employees on lay-off will continue to accrue public holidays that occur during the first 13 weeks. They will not accrue annual leave during the period of lay-off.
The annual leave that they accrued up until the point of being laid off will remain intact. Employers should not pay employees in lieu of this annual leave. Rather, it should be made available to the employee to take once they return to work. Given the exceptional circumstances that we are living in, it could well be the case that an employee genuinely cannot take their accrued annual leave this year. If this situation arises employers should try to be flexible in terms of allowing an employee to carry over leave into the next calendar year.
Redundancy
The law on claiming redundancy following a period of lay-off or short-time working had been changed during the Covid-19 emergency period. The emergency period is currently set as 13 March 2020 to 31 May 2020, however this may be extended.
Normally, employees who are laid off or put on short-time hours, you can claim redundancy from their employer after 4 weeks or more, or 6 weeks in the last 13 weeks.
Under the Emergency Measures in the Public Interest (Covid-19), employees who have been laid off during the emergency period, as a result of the Covid-19 pandemic, are not able to claim redundancy.
Putting staff on layoff
As the country tries to get to grips with the Covid-19 pandemic and companies are struggling with temporarily closing their business and laying-off staff, here are some key things you need to know about layoff.
Layoff or redundancy?
As a result of the recent business closures, many employees have been layed-off. Layoff is a temporary measure, whereby the individual is still an employee of the company but they are not receiving any remuneration for the duration of the layoff. Normally, once the situation that led to the layoff is over, the employee will return to their previous role on the same terms and conditions, their length of service will not be impacted by the layoff. In the current situation, it is hoped that many business will be able to re-engage their staff once the current emergency situation eases.
Redundancy on the other hand occurs when the employee loses their job permanently, due to a business closure or a reduction in work levels.
Other Layoff Considerations
- Employers should give employees notice in writing that they will be put on layoff, although no time period is specified
- Notice can be given using form RP9
- Generally, in order to layoff an employee there should be a layoff clause in the contract of employment or it should be custom and practice in the company. It is imagined that flexibility will be shown at this exceptional time, if neither of these exist. However some employers may consider:
- including a layoff clause in the agreed terms of employment on a temporary basis,
- getting some form of confirmation, signature or email, from the employee to the layoff.
Should I pay employee’s who cannot attend work because of bad weather?
Now that the silly season has passed, everyone is facing into a new year – and a potentially severe winter in 2020…. Extreme weather can impact on your employee’s ability to attend work. We experienced this with storms Emma and Ophelia. While an unexpected day off was welcomed by most employees, the issue of getting paid for that day was another matter.
Employers are not obliged to pay employees who cannot attend work because of bad weather. Employees do not have an automatic entitlement to a day’s pay. However, as problems getting to work may be outside your employees’ control, it can be argued that it is unfair not to pay them. This also applies where you as their employer may decide to close your business. Health and safety issues may arise if employees feel pressure to go to work in dangerous conditions under the threat of disciplinary action or by not being paid. Employee relations and productivity may also be affected.
So, should an employer pay an employee who is late or who fails to turn up for work as a result of bad weather?
This normally depends on whether the non-attendance is due to the decision of the employer or the employee. If the employer decides to close their premises, or send employees home because of bad weather, then generally, they should pay their employees. If the workplace is open and work is available but the employee themselves chooses not to come to work, arrives late or leaves early, an employer would have no obligation to pay the employee for their absence.
It is advised that employers look at this on a case by case basis and adopt a balanced approach. Be flexible – consider alternatives to with-holding pay such as allowing your employees use annual leave for days they are not able to travel to work, allow staff to work up time missed or can your staff temporarily work from home?
You should be careful not to get caught out – have clear policies around issues such as getting to work and managing unexpected leave requests. Communicate these to your staff now. Potential absenteeism issues resulting from extreme weather looks set to continue and as an employer, you will benefit from setting out in advance the ground rules your employees should follow when this occurs.
New Year, New HR You!
Start 2020 with some HR goals to put you on the front foot. Make your goals achievable and easy and you won’t be one of the 80% of people whose resolutions have fallen by the wayside by February 1st! Consider how technology could help you achieve a leaner you in 2020.
1. Cut out the fat…
Hate all those repetitive admin tasks that keep popping up over and over like manually recording your employees annual leave, amending employees’ personal details, making sure they are receiving and reading important company updates? Well, now is the time to get rid of them. Consider how an online platform could take care of those tasks and many more.
2. Get out and about more…
Manage your HR tasks from almost anywhere by using your Employer Dashboard to monitor your employees annual leave requests, review your payroll reports and keep an eye on your Revenue payments. As long as you have an internet enabled device, it can all be at your fingertips… anytime, anywhere!
3. Communicate better…
Use online document upload features to distribute, track and manage any information you want your staff to have access to. Contracts, policies, training, schedules, you name it. You have the peace of mind of knowing your employees have that information at their fingertips and that you can see a log of when and how often the are accessing it.
4. Face your fears….
GDPR and cyber security. The two scariest words in the English language. Free yourself from that fear with a robust online portal. Fully secure servers, individually password protected and fully GDPR compliant.
Minimum wage to rise to €10.10 per hour
Minister, Regina Doherty, has announced that from 1 February 2020, the minimum wage will increase from €9.80 per hour to €10.10.
The decision to increase minimum wage by 30 cent follows a recommendation in October by the Low Pay Commission. Strong economic growth and greater certainty surrounding Brexit were two key factors in the decision to introduce the increase.
In order to ensure that the increase in the minimum wage does not result in employers attracting a higher level of PRSI, the employer PRSI threshold will increase from €386 to €395 from 1 February 2020.
Minister Doherty is quoted as saying that; “with this most recent increase in the National Minimum Wage, an employee on minimum wage who works a full 39 hour week will now receive an additional €11.70 per week, or an extra €608.40 gross per year.” It is estimated that over 127,000 workers will benefit from the increase.
Employers should also note that the minimum wage for younger workers will also increase:
- Aged 19: €9.09
- Aged 18: €8.08
- Under 18: €7.07
Parent's Leave is here
The Government’s newest way of enabling parents spend time with their new baby came into force on 1st November 2019. This is called Parent’s leave.
What you need to know:
- This leave is currently capped at 2 weeks. The leave must be used before the child turns 1. In cases of multiple births, this leave can only be claimed once.
- It can be taken as a continuous period of 2 weeks or in 2 separate 1 week blocks.
- Parent’s leave must be taken following the end of maternity leave (paid or unpaid) or paternity leave – there cannot be a break between these leave types.
- Six weeks' notice of the intended use should be given to the employer by the employee.
- Employers are allowed postpone parent's leave in situations where taking this leave would have an adverse effect on the business. However, it cannot be postponed for more than 12 weeks.
- Parents receive a statutory payment, currently set at €245 per week (once they have the necessary PRSI contributions).
There is no requirement for employers to pay employees while on parent's leave. It will be up to each employer to decide if they want to top-up this payment. The advice would be to be consistent with approaches taken on the other family leave types.
What employers need to do now:
Company policies should now be reviewed and updated to reflect these changes. This will help you prepare for staff requests for parent’s leave. Should you get an employee request for parent’s leave, make sure you keep your paperwork & record keeping in order.
Bright Contracts has been updated with this policy so you can have peace of mind in knowing you are fully compliant with the new legislation.
