Mark Bell

The 33-page report, from the Covid-19 Law and Human Rights Observatory at Trinity College Dublin (TCD), outlines the existing law and argues that it is insufficient to provide adequate and effective enforcement of the right to disconnect.

The current law is based on the Organisation of Working Time Act 1997, which sets in stone enforceable rights to rest, and a statutory code of practice on the right to disconnect, which is not legally binding but can be taken into account when the 1997 Act is being applied.

The right to disconnect has become a particularly prominent issue following the start of the Covid-19 pandemic and the sharp increase in working from home.

Professor Mark Bell, regius professor of laws at Trinity, said: “If work can be performed anywhere, and at any time, then workers may find themselves ‘always on’, with damaging consequences for physical and psychosocial well-being.

“In response, there are growing calls across Europe for the creation of a legally-enforceable ‘right to disconnect’.”

Alan Eustace, PhD candidate in Trinity’s School of Law, added: “Contrary to the government’s current position, our report concludes that these instruments are insufficient to provide adequate and effective enforcement of the right to disconnect. The report recommends that Ireland goes further by putting the right to disconnect into binding legislation.”

He added: “Legislation needs to clarify the distinction between ‘working time’ and rest periods; during the latter, workers should not be expected to be normally available to their employer, albeit there may be circumstances where flexibility is required.

“This non-availability is key: rest periods must be protected from the risk or expectation of being contacted for work purposes – whether or not work is actually performed.

“However, account needs to be taken of the realities of the business – including any business conducted across time zones, and flexible working arrangements. For such laws to function in practice, they must be implemented by employers with the participation of trade unions or other workers’ representatives.

“To be effective in practice, all workers should be included and this should encompass ‘non-standard’ forms of employment, such as those in the gig economy.”