The right to disconnect from work at home

Whilst the political leadership is currently preoccupied with how best to reopen the economy, the business community continues to be tasked with the conundrum it faced back in March 2020 when the pandemic was first declared by the WHO. Simply put, how do we navigate the current and ongoing challenges brought about by the disease while trying to best prepare for a post-covid19 world?

The visions of what that world may look like are ever changing, as the questions of vaccine mandates, covid19 reinfection, and debilitating long-term effects force us to change our assumptions almost daily.

One of the questions the pandemic has raised that would need to be answered sooner rather than later is that of defining and managing work-from-home arrangements and how they will affect employee benefits and entitlements.

This question is front and centre in my mind, as I have been following the developments in Ireland where they have introduced a new workplace relations commission code of practice to protect employees from the expectation that they are always available. The code protects traditional office workers, as well as those who are working from home. In fact, the code aims to protect all categories of employees from the fact that email, social media, and smartphones have brought with them the expectation that one must always be contactable, no matter where one is, and the negative shortfall that inevitably comes when one is not.

TT is far from having this debate, but we should. In the traditional bricks and mortar workplace, we have long recognised that it is neither healthy nor sustainable that employees routinely or continuously work outside their normal working hours, and there is a system in place to adequately remunerate employees when they do.

We all know the basic overtime structure – time and a half, double time, triple time. I want, however, to push this conversation further. What happens when the employee that must work these hours outside of the normal work day is working from their home? What recourse does the employee have whose Netflix plans have been pushed aside to take a work-related call and deal with a work-related matter? Is he then entitled to overtime?

The position of the Industrial Court is clear: overtime cost is incurred by an employer when he requires that an employee works in excess of agreed hours, on days off, in emergencies or on holidays, public or not (TD 107 of 1998). It has also clarified that the principle of good industrial relations that governs overtime is specifically, “of overtime work not being compulsory, and of reasonable requests for such work, reasonable compliance and reasonable acceptance of excuses for non-compliance (TD No 64 of 1984)."

I would therefore argue that the direction of the court in this circumstance is indicative of a two-pronged approach – that the employee is entitled to remuneration for overtime work and secondly, that the employee has a right at law to refuse a request for overtime work, provided the grounds are reasonable.

Does this provide us with any guidance on the issue of refusal to work after hours if working from home and recognition of same via overtime remuneration? Since the direction of the court does not stipulate it is only applicable in the workplace, it is certainly arguable that its applicability is independent of whether that work is in the office, on the factory floor or in one’s living room.

Of course, the answer is not as straightforward as this. The immediate consideration that comes to mind is, how do we even measure overtime work from home and is such work equally comparable to workplace overtime? Overtime in the workplace is obvious – you are in the building assigned to various tasks and your supervisor is there to sign off and verify upon completion. How does that translate when working from home? Is a system of log in and log out for each task going to be appropriate or even practical in every circumstance?

This question of disconnection rights and remuneration is going to become even more pressing as the mental and emotional strain of dealing with the pandemic continues. The employee that feels emotionally distraught over the daily covid19 report may not be in the mental space needed to deal with a work-related matter, even if they are being paid. Should they be punished for refusing to respond immediately under those circumstances? They may feel that overtime pay is insufficient to compensate for having to turn the place where they live, eat and sleep into a 24/7 office as well.

In any event, the matter will be tested sooner rather than later, as we navigate our post-covid19 corporate environment. We will all need to be ready when it does.