Covid-19 Law and Human Rights Observatory calls for 'Right to Disconnect' to be enshrined in law

A new report by the Covid-19 Law and Human Rights Observatory at Trinity College, Dublin states that the so-called “right to disconnect” should be “set in stone” through legislation. This will, the authors argue, protect workers from an expectancy of constant availability and allow them to work from home whilst maintaining what the World Health Organisation terms “a state of complete physical, mental and social wellbeing that does not consist only in the absence of illness or infirmity”.

The report, entitled ‘A Right to Disconnect: Irish and European Legal Perspectives, states that whilst the Organisation of Working Time Act 1997 and the Statutory Code of Practice on the Right to Disconnect provide some potential for protecting one’s right to disconnect, this is insufficient. The report recommends that legislation be enacted containing definitions of “working” and “leisure” time as well as outlining circumstances in which it is permissible for employers to contact employees outside of their normal working hours. The report discusses how a balance might be struck between what it calls the “key” rest periods of strict non-availability, with the “realities of business” - for example, working across different time zones.

The report discusses the current legal position in Ireland, examining both legislation and case law. It examines what the authors term the “misguided” view of the Irish Government that legislation providing for the right to disconnect is unnecessary. It then goes on to look at EU law on the issue before discussing its treatment in both France and Germany (France as the first country in the world with a statutory right to disconnect, Germany yet to legislate for it). For example, the report argues that even in Germany, where prominent corporations have adopted their own codes of conduct to implement a right to disconnect (e.g. Volkswagen shutting down email function on work smartphones thirty minutes after regular working hours), there remains much legal uncertainty on the issue that could be resolved by a more “cohesive, but also flexible legal framework”.

 Contributors to the Report:

• Mark Bell is Regius Professor of Laws and Head of School at the School of Law, Trinity College Dublin. He has published widely on Anti-Discrimination Law and Employment Law, particularly in relation to EU law.
• Marta Lasek-Markey is a Ph.D. candidate in the School of Law. The subject of her thesis is Posted Workers and Precariousness in Practice, and her research is funded by the Irish Research Council.
• Alan Eustace is a Scholar of Trinity and a Ph.D. candidate in the School of Law. The subject of his thesis is The Worker and the Constitution: A Theory of Constitutional Labour Law, and his research is funded by the Irish Research Council.
• Thomas Pahlen is a Ph.D. candidate in the School of Law. His research examines the horizontal effect of the EU Charter of Fundamental Rights in employment law.

You can access the full report here.

Professor Mark Bell is quoted speaking to the Irish Examiner about the ‘right to disconnect’ and the report here, and alongside fellow contributor Alan Eustace in Irish Legal News here.