Right to disconnect and Republic of Ireland updates

For those operating in the Republic of Ireland we have a brief update on changes in the jurisdiction. The section on “Right to Disconnect” may be of interest to readers operating in NI and GB as this is something that is on the agenda and gathering momentum in these jurisdictions.

The Republic of Ireland updates that we want to highlight today are:-

  1. There are two new Codes of Practice on the Prevention and Resolution of Bullying at Work and The Right to Disconnect
  2. There are changes to Adoptive Leave, Parents Leave and Paternity Leave.
  3. In the future statutory sick pay will be introduced along with a Code of Practice on the Right to work remotely.

Prevention and Resolution of Bullying at Work

A new Code of Practice on the Prevention and Resolution of Bullying at Work has been issued by the Workplace Relations Commission.   It replaces Codes of Practice on Bullying issued by the Health and Safety Authority in 2005 and the Labour Relations Commission in 2002.

The Code recognises that workplace bullying is both a health and safety and an employment law issue.  In ROI, an employee can complain externally to the Workplace Relations Commission and the Health and Safety Authority.  Equivalent courses of action are not available to employees in NI/UK.

A complaint to the Workplace Relations Commission: An Adjudication Officer of the WRC can conduct an investigation into the fairness of an investigation carried out by the employer.

A Report to the Health and Safety Authority: Where an employer fails to act reasonably in a bullying matter, the HSA has the power to take enforcement action, for example, by giving verbal advice, written advice, or issuing an Improvement Direction or an Improvement Notice.  The HSA can also, after investigation, forward a file, with recommendations, to the Director of Public Prosecution (DPP) for their decision as to the prosecution of employers where there is evidence that the employers have failed in their duty to protect employees from bullying.

The New Code stresses that “bullying” and “harassment” are two distinct concepts, and the Code solely addresses the question of workplace bullying.  That stated, the Code notes that an employer can have one policy document containing its policy and procedures in relation to both bullying and harassment. Key points in the Code are:

  • The Code identifies the employer’s duty to act reasonably to prevent workplace bullying patterns developing and to resolve complaints.
  • The employer must also prepare a Safety Statement under section 20 of the Safety, Health and Welfare at Work Act 2005 which includes bullying.
  • It must also develop a proper workplace anti-bullying policy, in consultation with employees. This should include the Code’s three stage process: an initial informal process, a secondary informal process and a formal process.
  • Employers have a duty to train managers, both those managing complaints and line management.
  • Where possible, a Contact Person should be appointed whose role is to listen, and offer guidance on options in line with company policy and procedures, on a strictly confidential basis. The contact person will have no role in the investigation of any complaints.

Failure to follow a Code is not an offence in itself, however the Code is admissible in evidence in proceedings in the Labour Court or Workplace Relations Commission and where relevant will be taken into account in determining a matter.

The Right to Disconnect

Checking emails outside of working hours has become normal practice in many businesses.  The Code of Practice on the Right to Disconnect seeks to address this.  The Code states that

  • Employees have the right not to routinely perform work outside normal working hours.
  • Employees have the right not to be penalised for refusing to attend to work matters outside of normal working hours and
  • There is a duty on employers and employees to respect another person’s right to disconnect, e.g. by not routinely emailing or calling outside normal working hours.

Employers should develop a Right to Disconnect Policy for employees and seek to implement this in the workplace.  In particular, employers should ensure that managers are aware of an employee’s working time entitlements and the right to disconnect.  Managers are encouraged to be active role models by openly supporting the policy.

Failure to adhere to the Code could result in increased awards of compensation both in the civil courts for matters such as personal injury complaints caused by bullying and/or stress, and in respect of complaints based on statutory rights such as working time, unfair dismissal (including constructive dismissal) and health and safety at work.

Changes to family leave

Under the Family Leave and Miscellaneous Provisions Act 2021:

  • Parents leave increases from two weeks to five weeks.  During the leave eligible employees are entitled to Parent’s Benefit from the Department of Social Development.
  • Adoptive leave is now available to same sex couples whereas previously it was only available to female adopters.
  • Paternity leave is amended to ensure that a person cannot take adoptive leave where they have taken paternity leave in respect of the same child.

Coming up:

Sick Pay:  Currently there is no obligation on employers to pay sick pay.  Sick employees must claim illness benefit from the Department of Social Protection unless their employer has a company sick pay policy.   However, the government is to bring in statutory sick pay by the end of 2021.

Initially employers will be obliged to pay sick pay for three days of absence, starting in 2022, rising to 5 days in 2023 and 7 days in 2024. Employers will cover the cost of 10 sick days per year by 2025. It is being phased in to help employers plan ahead and manage the additional cost.

Sick pay due will be 70% of an employee’s wage, subject to a daily threshold of €110. The cap can be revised over time by ministerial order in line with inflation.

An employee will have to obtain a medical certificate to avail of statutory sick pay, and the entitlement is subject to the employee having worked for their employer for a minimum of six months.  Once entitlement to sick pay from their employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.

Right to request remote working

A Public Consultation has been undertaken on the introduction of a right to request remote work, following the National Remote Working Strategy, launched by the government in January 2021.  There is not yet draft legislation but Guidance on Working Remotely has already been published by the Department for Enterprise, Trade, and Employment.

Gender Pay Information bill 2019 is due to come into force end of 2021 and is to require employers to provide information on pay, bonuses and benefits in kind provided to men and women.

Organisation of Working Time (Reproductive Health Related Leave) Bill 2021 – If passed, the Bill will create an Act to provide for a period of paid leave consequent upon miscarriage or for the purposes of availing of reproductive healthcare, with protection from unfair dismissal.

If you would like to talk about any of the above, please contact a member of our team.



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