The ‘Good Jobs’ Employment Rights Bill, public consultation of July 2024, sees the Northern Ireland Executive consulting on various areas of employment law, including the proposal of a new ‘Right to Disconnect’.
According to the Executive, the widespread use of smartphones and other digital devices means that always being ‘on call’ has become a reality in some workplaces, as continuous remote access can create pressure for individuals to be constantly accessible. Proposals for a right to disconnect have developed as advances in communication technologies have impacted on people’s daily lives. The impact of the COVID-19 pandemic has seen the shift, for many, to working from home, and this has brought this discussion to the fore.
The Department for Economy is seeking views on whether the existing legislation, as it relates to working time, is still effective in terms of promoting a healthy work/life balance. Essentially, the Executive is enquiring whether there should be a right to disconnect or log off outside of working hours.
The Existing Legislation on Working Time
The Working Time (NI) Regulations 2016 (the WTR), as well as addressing annual leave, sets limits on the amount a time a worker can work i.e. no more than 48 hours, on average over a 17 week period. Employers are also under statutory and common law duties to take reasonable steps to protect workers’ health and safety.
The WTR also provide for 11 consecutive hours’ uninterrupted rest per day and 24 hours’ uninterrupted rest per seven day period of working. After a working period of six hours a worker is entitled to a rest break period of 20 minutes. 5.6 weeks’ annual leave per annum (a minimum of 28 days’ leave) is also provided by the WTR. If workers are, regularly, working in excess of the 48 hours’ limit, including remotely, and have not agreed in writing to ‘an opt out agreement’, (pursuant to Regulation 4(1) of the WTR), employers might be on the receiving end of a claim to the Industrial Tribunal for a breach of the Regulations and/or enforcement proceedings via the Health and Safety Executive for Northern Ireland. As such, employers may want to review whether certain employees should be invited to ‘opt out’ to ensure that employers are not in breach of the Regulations.
The Way Forward in NI
The right to disconnect seems to be imminent in England and Wales with the new Labour government now in power. Scottish Government civil servants now have the right to not be contacted outside work hours after unions came to an agreement with employers. However, the Executive have to be clearer in their Will the right be enforced in the civil courts/tribunal or via a criminal process? Will measures be put in place to permit only exceptional contact ‘out of hours’?
It may be prudent for both the Executive and employers to see what process is adopted in England & Wales and review how effective it turns out to be, before making any change. In light of the many parallels in employment law in NI and GB as well as the number of GB companies operating in NI, maintaining a consistency of approach might be in the best interest of NI employees and GB employers.
The Executive seeks views on whether a statutory Code of Practice would achieve the right balance between the need to protect employees and support economic development and, if not, what other actions should the Department consider e.g. would advisory guidance from the Labour Relations Agency and Health and Safety Executive for Northern Ireland be more effective?
The Executive point out the need for work/life balance is vital in the context of the development of modern working practices. Modern working practices (such as the use of technology to facilitate remote working) can help facilitate flexible working practices which are mutually beneficial for both businesses and workers. There is also a need, however, to ensure that this balance is correct. While workers need to be able to switch off from work, there may be a need for businesses to have flexibility to, for example, deliver services to international clients on different time zones.
The outcome of this consultation will be of considerable significance to employers in Northern Ireland. It is advisable that any businesses with queries regarding current or upcoming employment legislation take legal advice from an experienced solicitor.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Team at Cleaver Fulton Rankin for further advice or information.
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