Elisa: Good morning. Thank you to those that have joined us so far. We are just slightly before 8:30. We have a very large group joining us today, so we're just going to hang for a few minutes before we begin, just to let a few more people join and we'll be with you shortly.
Good morning. We have about half of the participants joined already. We're just going to hold on a few more minutes to let a few more people join and we'll get started.
We still have people joining but I think we're going to begin because we do have a full program for you today. I am Elisa Scali. I am a partner with Gowling WLG, practicing in the Employment Labour and Equalities group, ELE for short because that is a mouthful. I'm very excited to welcome you here today to the first webinar that is being presented as part of our webinar series in 2022. We are kicking off our webinar series with a very hot topic and that is the new requirement, under the Employment Standards Act, to implement a disconnecting from work policy. We have had many, many questions from employers regarding this new requirement and we are here today to break it down for you, as best that we can. To help us do that today we have Bettina Burgess and Hina Ghaus with us. Bettina and Hina both practice exclusively in the area of employment law and they work out of our Waterloo office. Bettina is a passionate about employment law but her true love is for her two Bichon Shih Tzus. Her kids realize that she loves her dogs more than she loves them when they realized that she started using the dog's names as her passwords rather than her kids names. I have to say, sadly, my kids realized the same thing when they noticed I replaced their photo on my screensaver with our dog's photo. Hina is not only a talented lawyer but she's also a talented artist, I learned. She won an art contest many years ago for creating a sculpture of the human brain. We will also have the benefit today of the insight of a distinguished panel of employment lawyers coming from France, Ireland and Italy where legislation, regarding disconnecting from the workplace, is already in place in those jurisdictions. Our panel will be joining us a little later on in the webinar and we'll introduce you to them at that time. We're really looking forward to hearing their insights on how they've implemented the disconnecting from work policies and practices. So before we get started, just a few notes to mention. We will not be doing a live Q&A at the end of the webinar today but the Q&A feature will be open. So please add your questions to the Q&A. We may answer some of those questions during the session, but what we hope to do is collect the questions and provide answers to you following today's session, whether that be in writing or by way of a follow up recorded session. To note, today's session is being recorded and the recording will be made available to you after the session today, as will the PowerPoint presentation that you'll be viewing today. So let's get started. I'd like to now turn it over to Bettina. Bettina, you're on mute.
Bettina: Sorry about that. We were talking yesterday as we were rehearsing this and Steven, one of our BD fellas was talking about a t-shirt that he saw that says, "You're still on mute." I clearly need that. Well welcome everyone. I don't know what it's like in regions where you are but it has turned out to be a really awful day here in PW with rain, freezing rain, and school buses are closed or down. Schools are closed. So hopefully you're tucked away in jammies somewhere watching this webinar. So there's been a lot of hype since this legislation came into force back, at first it was put on the table back in October, and then came into force in December. We all scrambled a little bit to figure out what's going to happen and what's going on. So hopefully today we'll give you some guidance. We plan on going through all of the strict legislative requirements that we know of to date. Then about an hour into the presentation we're going to bring on some panelists from Europe; Italy, Portugal and Ireland, who have already dealt with this legislation in your jurisdictions and we're hoping to get some practical advice from them about how their clients have dealt with very similar legislation.
So to begin, as everyone knows, there's a new requirement under the Employment Standards Act, specifically section 21, requiring employers who have 25 or more employees in Ontario to develop a policy dealing with the right to disconnect. Next slide, please.
There are lots of reasons why this may have come about. Interestingly the concept of the right to disconnect has its genesis in France, we think. In any event, back in the early 2000s there was a case that went to court in France where the employee's employment was terminated for failing to respond to his manager's communication after hours. He was terminated for misconduct. In that particular case the court held that it was not misconduct warranting termination of employment, that the employee did not respond to communications after working hours. That led to, over time of course, the evolution of right to disconnect legislation, at least in Europe after 2010. We'll hear from the other European colleagues about that legislation in a little while. So the cynical view, of course, is that the Conservative Government in Ontario has tried to win some political points with workers so that they can be re-elected. They're lots of things that I'm sure that you've noticed that said court is doing to make things better for workers, we hope, but a little bit more challenging for employers. Giving everyone the benefit of the doubt, the rationale that the government has indicated during the legislative debate and so on, is to really deal with mental health and burnout that so many people are now experiencing, have been for so long in this very fast paced environment in North America and, of course, with the advance of technology and then in particular with COVID. Everyone working from home, in front of their laptops, no way to break up the day. So this was perhaps a response to that. As I indicated, the practical view, with the advancement of many different forms of technology that results in the expectation that you're going to respond instantly, 24 hours a day. Sometimes this sort of patriarchal approach to changing culture is necessary. So legislatures decided to codify certain elements that we want to see changed in society. Next slide, please.
Okay. So let's get into the meat of it. To which employers does this legislation apply? It does not apply to Federally regulated employers at all. So if you're in banking, telecommunication, shipping, aeronautics, industries that like that you don't have to worry about it. It does apply to every single Provincially regulated employer in Ontario. It applies in all industries. I did a webinar last week and I was asked, does it apply to farmers? Yes. It applies to farmers if they have 25 or more employees. It applies to businesses or organizations that are for profit, not for profit, charitable, sole proprietors, corporations. It doesn't matter what type of business you have, if you have 25 or more employees, you're Provincially regulated and you carry on business in Ontario, then you have to have this policy. Next slide, please.
Hina: If you're a Provincially regulated employer, and you have 25 or more employees, then you meet the threshold for having to have this sort of policy in place. But the question really is, when are employees counted to determine if you need to have this policy in place? So the trigger is actually January 1, of each year. So whether a policy is required from year to year could change but the seminal date would be January 1. So for example, if you are a Provincially regulated employer and you had 25 or more employees, as of January 1, of 2022, then you're caught by this new requirement and you do need to have a disconnecting from work policy in place. For this first year that the legislation has been introduced, you have to have the policy in place by June 2, but going forward it's by March 1 of each year. So say you had 25 or more employees this past January 1, then you need to have a disconnecting from work policy. This is even if the next day, on January 2, you're employee count dropped to under 25. On that seminal date you still met that threshold so you need to have a policy in place. Then the next count of your employees would be the subsequent January 1. So January 1, 2023. Then if you meet the requirement, or not, if you meet the requirement of 25 or more employees then you have to have a policy in place by March 1, of 2023, and then March 1 is the date you need to have that policy in place going forward. Next slide, please.
In terms of who's included in this count, the policy requirement really applies to all employees. There are no exceptions other than Crown employees. So all employees really means whether you're a probationary employee, a part-time employee, full-time, casual, fixed term. Whether you're working remotely, if you're on a leave of absence, all of those different employees that an employer has are counted in that 25 or more threshold. If you're an employer that has multiple locations across Ontario then the employee is actually collective from all of those locations. So all employees really does mean all employees. But that also means that it does not apply to independent contractors, provided that independent contractors are classified properly.
Bettina: Okay. Ongoing with who is included in the count, oftentimes of course employers use temporary or assignment employees, as they're defined under the Employment Standards Act. So you engage someone through an agency, but they're working in your organization and the question becomes, do you have to count those individuals. The answer is no. They would not be included in your count. They would, however, be included in the agency's count. So if you are a temporary or assignment agency you have to count all of your employees as of January 1, whether they're presently engaged with another client, or not engaged but still employed by you. So in other words, they're waiting for their next assignment but they're not technically active at that moment. They still must be included in the count. The other thing to keep in mind, although this doesn't happen terribly often, there could be situations where two different entities could be held by a court to be related, or tribunal, to be related or common employers. In those situations a tribunal might find that you have to combine your employees and therefore both entities ought to have had a right to disconnect policy. That's likely going to be a rare situation but just something to keep in mind. If you have an entity where two different entities that you sort of partner with, and you share employees back and forth, you could have to count the totality of both entities. Next slide, please.
Hina: So say you're a Provincially regulated employer and you meet this employee threshold count, then the next question is, when must this policy be completed and when do you have to provide it to your employees? There is a special rule, as I mentioned earlier, for this first year that this requirement is being introduced. So for 2022, if you meet all the requirements, the policy has to be in place by June 2, 2022. Then going forward the policy must be in place by March 1 of each year. In terms of the logistics of what the policy involves, the legislation does speak to this, even though it covers almost nothing about what the policy actually should include itself. So in terms of the logistics the policy has to indicate when it was prepared. So you want to have that right there in the policy as well as the date of any changes that may have been made. In terms of when the policy has to be provided to employees there's basically three different time periods that you want to keep in mind. You have to provide a copy of the policy to all employees within 30 days of when you first prepared the policy. Then if you make any changes to the policy you need to have a copy to all employees within 30 days of any changes that you made to it. Then going forward, whenever you hire a new employee, you need to provide them with a copy of the policy within 30 days of that employee being hired. Now that being said, if your policy hasn't changed from the year before or 2 years ago when we're in the future, you don't have to provide a new copy to each employee if there have been no changes. Unless the employee's a new employee. Then lastly, there is also a requirement on how long you want to maintain the policy and the legislation says that you want to maintain it for 3 years after the date it is no longer in effect. So you do want to keep copies, if you have any audits, to have that controlled. Next slide, please.
Hina: So now that we know you have to provide a copy of the policy to all employees, the question is, does it have to be in any particular format? The answer is no. It could be a print copy but you can also just provide it through an attachment to an email. You can send it through a link online. The Employment Standards guidelines really say that as long as the employee has a reasonable opportunity to access the policy, and print it if they want to, that that's okay. Now I don't know that many employees that are going around printing policies nowadays, especially with our paper free offices, but that's the thing. As long as they have that opportunity that's good enough. Then, lastly, the policy does not have to be a stand-alone policy. This can be included as part of any employee handbook or manual that you already have. You can just put it in there and meet your basic requirement for having the policy. Next slide, please.
Bettina: So what does the legislation actually say with respect to what disconnecting from work means? The specific text in the legislation says that it means, "Not engaging in work related communications including emails, telephone calls, video calls, with the sending or reviewing of other messages so as to be free from the performance of work." The definition makes clear that the intent of the legislation is to ensure that the employee is not performing any work during a particular period of time. Now later on we'll get into what the actual specific requirements are under the legislation, which is actually none, but as you're considering drafting the policy think about things like this: when we all think because of technology now that oh, I'm just going to send this email, or I'm just going to send this text message, and the person will just read it. They don't have to respond to it. It's only going to take them 2 seconds to review and respond. But that's not really true because if you think about the times that you get an email or a text message, with respect to work, yes it might only take you 2 seconds to respond to it or 2 minutes, but you might be thinking about for 10 minutes, 2 hours. I was telling everybody last night that I woke up at around 1:00 in the morning and should not have, but did, look at my phone. Saw a message from someone and I knew I was not going to be able to get back to sleep. So I got up at around 1:30 and responded to the email. So this is one of the reasons, that we believe that this legislation has be enacted, so that employers start thinking about the psychology of sending these messages after hours and what it does to an employee, and we'll get into a little bit more of that as we go along. The legislation goes on to say, "A written policy required under this legislation shall contain such information as may be prescribed." This is what alluding to. That there is no prescribed information yet set out in the legislation or regulations. When we looked at the legislative notes while the Bill was running through Parliament, the intent indicated by the legislators is that they intentionally left it blank, with no specific requirements as to what needed to go into the policy in order to allow flexibility for various workplaces. They're putting trust and faith in the employers that they're going to be thoughtful about what they put into the policy, and take into consideration the needs of their workforce, without having to prescribe it. The cynical view could also be they really wanted to get this legislation put through very quickly and didn't have time to actually think about it. So we may see some regulations coming out in the next little while, in the next year, however long as this progresses. Next slide, please.
Oddly enough, and for a while we just had the legislation, but the Employment Standards Branch has now issued guidance. So if you go to the Ontario Ministry of Labour website you can look. There's now a page where the Employment Standards Branch has given a little bit more information as to how this legislation might be interpreted. What is set out there is that the legislation doesn't even provide employees with a right to disconnect, other than what is already in the Employment Standards Act, and we'll go through what's already there that protects employees with respect to hours of work restrictions and the right to be free from work, at various times. This policy could conceivably be nothing. It could essentially be a paragraph and you would be in compliance because, again, there is no requirement to establish new rights. But we'll talk about, later in the presentation, how that could potentially be dangerous for an employer if they take this just by the strict letter of the law and not comply with the spirit of the law. Next slide, please.
Hina: So Bettina read to you the definition of disconnecting from work that's in the legislation. The definition gives you examples of what work related communications are. It uses the word "includes" which means its a non-exhaustive list. They're really just examples. So the legislation says it includes emails, telephone calls, video calls and the sending or reviewing of other messages. But the term work related communications is really flexible enough to cover various types of technology. It's also flexible enough to cover any form of communication you can really think of. So for example, iMessages, Slack, any apps developed in-house, Hogwarts Owl Post, all of that could fall under the definition of work related communications. So really be mindful of the types of things you want covered in your policy and how they're going to be used going forward. Next slide, please.
Bettina: Thank you, Hina. I made her say that stuff about Harry Potter. Thank you. Developing the policy. So here's where we get away from the strict letter of the law and we start thinking about what are the potential practical implications of the legislation. The legislation does say that employers have to have a policy that addresses all employees. As Hina noted before there are no exemptions at all. We think that this might have been an oversight and eventually the regulations may say that individuals such as managers, supervisors, commission sales people, various professionals and so on, are exempt from this requirement but right now it's everyone. So you have to be very careful about how you draft the policy so that you're not accidentally including applying it to certain positions that you don't want to. We'll talk about that a little bit later. I should note, because even though I've said that in other presentations, we've been asked the question, does that mean it applies to CEOs? Yes. So far it applies from everyone from receptionist, low level administration all the way up to CEO, President, COO and so on. It will be considered a violation of the ESA if the policy attempts to carve out certain positions and say that this doesn't apply to you. You can have different terms that apply to different positions but you can't say this only applies to X employee, the group of employees, or class of employees. It must apply to all. Any term that's included in the policy, if it is deemed to be a greater right or benefit, will be enforceable under the Employment Standards Act as though it's a statutory right. So in other words, and Hina's going to go over the different rights that already exist, but if you have in the policy that non-exempt employees will not be required to answer messages or email communications after 8:00pm and if they do they will be paid a certain premium pay. That is then going to be considered a greater right or benefit because that's not something that they're already entitled to under the ESA, and they can then go to the Ministry of Labour and make a complaint that they're not getting that pursuant to the policy, and the Ministry of Labour will enforce it as though it's a statutory right. The other consideration is that anything that you put in a policy that offers any type of benefit to an employee will likely be deemed, at common law, to be a contractual right. Next slide, please.
Hina: As Bettina mentioned, this new legislative requirement, if you just do bare minimal compliance does not actually create any new rights for employees. Now that being said, there are a lot of existing rights that are already in the Employment Standards Act for employees. I won't go through each one in detail but these next two slides do cover that. There's things like daily hours of work limits. Working 8 hours a day or the regular work day in your workplace, unless there's some sort of an electronic or written agreement, where the employee can agree to work a certain higher number of hours than that. So there's things like that that exist. There's daily hours free from work. Employees are supposed to get 11 consecutive hours free from work. There's free time off between shifts. If you have successive shifts versus split shifts, there's these different rules under the Employment Standards Act. A lot of these rules you can sort of contract around. You can have an electronic or written agreement, for example, for weekly hours limits. There's also rules around weekly hours free from work. So all of these are summarized in these next two slides, and I won't go through this in detail, but you want to keep those periods in mind when you're looking at your disconnecting from work policy. Next slide, please.
So these existing employee rights, there's also things like meal periods, where you're supposed to give employees 30 consecutive minutes every 5 hours and the employee can also agree to break up these 30 minutes into two 15 minute periods. Then there's rules around public holidays, vacation time, and then leaves of absence. So all of these really are existing employee rights that you want to make sure mesh with any disconnecting from work policy you create, especially if you're creating one that's more robust than the minimum statutory requirements. Next slide, please.
In terms of what happens if you have a disconnecting from work policy and you don't really comply with it. There is that general offense provision in the Employment Standards Act where, if you don't comply with a provision of the Employment Standards Act, you can be ordered to comply and you could also be fined. So both of those are possible if you don't have a disconnecting from work policy when you're supposed to, when you meet those threshold requirements. But in terms of what kinds of claims employees can bring, this is a little bit less clear at this point. Say you have a disconnecting from work policy, as an employer, and this policy creates no new rights for the employee. That means really no enforcement action can be taken by someone like an Employment Standards officer relating to this requirement, to have a written policy. You have the policy and that's what the legislation requires. But if the employer is not following the policy, and then there's other consequences related to that, then there might be a place for a compensatory claim. So say for example you have a disconnecting from work policy and the employees getting messages all hours of the work day. The employee complains about these messages and in response they might have a negative performance review. They might be disciplined. That's a negative consequence and the employee might be able to claim reprisal as a result of the employer not following their own disconnecting from work policy. In that sort of circumstance an employee could make a compensatory claim for violation of this policy and reprisal.
Bettina: Sorry. I'm just going to jump in here because I think you meant to say that if the employee is receiving communication beyond the normal work day, rather than through the work day. So for example, if you have a manager who just refuses to comply with the policy that the employer has implemented, and continues to text and email his or her team during restricted periods pursuant to the policy, and then gives the employee a bad review. Similar to that case that we talked about in France. Then the employee, or if the performance ultimately results in the employee being terminated, there could potentially be a reprisal claim which could result in compensatory damages. Thank you. Moving on, next slide, please.
What are some of the other things that we have to consider that may arise as a result of having this legislation just outside of the ESA? If we think about various types of investigations that can occur or other areas where these can bring claims, for example under the Occupational Health and Safety Act, you can imagine an employee going to the Ministry of Labour talking about unsafe work conditions. They're being asked to work too long, that type of thing, one of the things that an inspector may be looking for now instead of just your health and safety policy is what does your right to disconnect policy look like? What's in there? Now they may not give much guidance as to what you ought to put in there. They may give you a compliance order that you've got to update it in certain ways, or have one, but that's another area where it might bleed into outside of the Employee Standards sphere. We might also start to see more and more work refusals under the Occupational Health and Safety Act as a result of this legislation because people are going to start thinking about work a little bit differently. One of the things that we'll talk about, in terms of what you need to think about when you develop the policy is, what are your employees going to be expecting of you now that this legislation is out? Regardless of what your strict legal requirements are, what are they going to expect and how they are now going to perceive the workplace now that legislators are thinking about the right to disconnect, and is this really a healthy work environment if you're sending messages throughout the night and requiring employees to respond to them or on the weekends? The other area could be constructive dismissal claims. So this could be another way that employees could start to examine the work environment, if it's a very unhealthy work environment, so your right to disconnect policies may be part of court litigation. Then again, just going back to the comment that I made before about internal employee relations issues, we may have a real disconnect between this announcement and sort of this media frenzy that this legislation has come out. It's in the news that this new right to disconnect requirement. Employees may think that you do have an obligation to establish policies that absolutely say you don't have to respond to emails between such and such hours in the day, even though you don't have that obligation as an employer. But your employees may think that you do and if you turn around and say to them, this isn't our strict legal requirement. We're not going to do that. Then you might have employee relations issues so you have to think about the expectations of your employees, the morale. Is this going to be another element that leads to people thinking about unionization? That type of thing and then, of course, external reputational harm. Are we going to start seeing businesses being slammed in the media because they don't have really robust right to disconnect policies? Are employees going to start posting things on glass door saying this employer has a one paragraph right to disconnect policy? Is it going to be something that employees start to think about when they're looking for work/life balance and which employer to accept employment from? You can compare it to a few years ago when the big trend was employer's starting to get on the band wagon with top ups for maternity and parental leave. Well it's not a requirement but that sure became something that employees were looking for from their employers. So just something to think about as you discuss with your businesses, how robust is our policy going to be? Next slide, please.
One of my other colleagues did a presentation on this and I liked her saying that policies are just pieces of paper that are meaningless unless you train everyone on them, you monitor them to ensure that they're being complied with and you enforce them and ensure that they're being implemented consistently. So one of the things that is going to be really key after you develop, and during the process and we'll go through that as well, after you develop the policy to do training. It's not a requirement under the legislation that you do training but it's certainly a recommendation. That you start with the managers because once the policy is developed this is definitely going to be sort of a top down lead by example type of situation. If you don't have managers complying, and they're continuing to email and communicate with employees when they ought not to be, you're going to have some problems. Very standard sort of performance management type of training that ought to be given managers. Then, again, it's really important to educate the employees on what the policy means so that they don't get this sense that when I go home at 5:00, or I log off at 6:00, that means that I never have to look at my phone or my computer or respond to anything for the next 12 or 13 hours. If there is an expectation that they do so in certain circumstances you need to explain that to the policy or to the employees. This is going to be one of those situations where just putting the policy in front of everyone's face and asking them to read it might not be sufficient. There may need to be an explanation of the rationale and why you developed certain terms for certain types of positions and so on. Again, for the HR folks that we've got on the call, really monitor what your managers are doing because if they're not enforcing the policy, of course, themselves if they're not complying with the policy this could result in liability for the organization. Then again, enforce it. You've got to come down on the people, not necessarily harshly, but you've got to deal with the people who are not complying with it to avoid liability. Then, where necessary, every once in a while re-train. As Hina indicated, if there are changes made to the policy you might want to have little sessions with employees and managers as to why things have changed. Next slide, please.
Hina: Now to get into what to consider when you're really developing the policy. The first step is to just learn about the basic legislative requirements and the fact that you're all here today, you're already doing that first step, so congratulations. But after that first step, what you want to do is assess what your company or organization truly wants to achieve. So as we discussed earlier, the basic requirements in the legislation are not the onerous for employers. If you want to proceed with a policy that just meets the bare minimum compliance you can do that. You would say things like the fact that the policy applies to all employees. You just cover off all the basics about when you have to post it, when you have to update it, that kind of stuff. You would just say that the company complies with all of the other Employment Standards requirements, the other things we discussed, the meal periods, all of those kinds of breaks. Then you'd have a caveat that people still have to complete the basic duties that they have to do for their position. So the language on the slide is not something that we represent will meet all of the basic compliance requirements but it's just an example of what a bare minimum compliance would contain. So if that's the approach you're going to take that's one way to go forward. What this might do is it might just maintain the status quo in your workplace as it is. If you have the kind of workplace where everyone is always working all the time, and you introduce a bare minimum compliance policy, it's not likely to change much in terms of how employees, you know, how many breaks they take, that kind of stuff. But an issue with having a bare minimum compliance policy, as Bettina mentioned, is morale and employee retention. If other employers are creating much more employee friendly policies, people have an absolute right to disconnect between certain hours, that might create an internal employee relations problem and even talks of unionization in some situations. So if you determine that a bare minimum compliance policy isn't really what's going to work for your organization then you want to look at having a more meaningful policy. The aim of having a more meaningful policy is really to ensure that employees can take that time they need. Take meaningful time off of work. The breaks that they have during the work day are rejuvenating breaks. So to make this sort of a meaningful policy more practical for employers, it takes a little bit more work on the front end. So for example, usually you don't have a one size fits all policy if you're looking for a more meaningful disconnecting from work policy. You might have to split it up by different departments, by different positions to really make it work in the workplace. Then additional things you would have to consider, if you're having this sort of a meaningful policy, is whether you need to do anything differently in terms of maybe you need to hire more employees. Maybe you need to have some sort of on call positions available so that you can have a meaningful policy that you can follow and that you can enforce. Next slide, please.
Once you've figured out the needs of the company, you've already connected with the executives, the next step really would be to talk to the people. So to connect with the managers, the supervisors, the project managers. This is a really good way to figure out the needs of the organization on the ground. This way, whatever policy you develop, is not just going to be a piece of paper. It's going to be something that can be followed, where there's input from workers, there might be more of a commitment to comply with it. Sometimes there's more of a sense of ownership when people are involved in the making of the policy. So the types of questions you might want to explore with your managers, your product managers, are what are the needs of the business? Are there set times where employees really don't need to be reviewing any messages? Are there set times where employees need to be reviewing messages but they don't need to be responding to them? If you go back to the definition of disconnecting from work, I thought it was interesting that they split up the fact that they say the sending or reviewing of messages to really kind of mention. It's not necessarily the same thing. You can review a message and think about it for the next 2 hours, as I know I've done in the past, so yeah. Then in terms of disconnecting from work policies, most will include something about what to do during emergencies. So things like that there might be exceptional circumstances where the employee needs to be reviewing certain messages, maybe ones that are marked urgent. You want to figure out what sorts of circumstances apply in your business. What is considered urgent for your workplace? Again, if you're looking at having a policy where you want to have the majority of employees being able to disconnect at certain time periods, but you keep having these needs and they're not necessarily urgent, that's when you want to consider potentially having different structures. Having more staff, maybe having on call positions. Like I said, this takes a little bit more work on the front end if you're looking to have a meaningful policy, but it does create a really good overall picture of what your business needs. Next slide.
Bettina: As we've been discussing throughout, although the policy has to apply to all employees and all positions, not all positions have to be treated the same. So you can have different expectations applicable with respect to different positions. As we were discussing, you can have some where you can think about different periods of the day, or the week, or the year where you can have a 100% absolute blackout period. If you can fit that into certain positions or policies. Again, these are all ideas to start thinking about. Are there any positions within your organization where you can say, under no circumstances are you to receive, well you can't help if you receive it, but under no circumstances are employees to be sent or be expected to respond to any form of communication during meal breaks, public holidays, vacation, those are kind of low hanging time periods. Or are there certain periods during the day, for example, from 6:00pm to 8:00am, on a Saturday or a Sunday? Things like that. Then you can think, is there a next level where we have a different sort of level of blackouts? Meaning you don't have to respond to communications unless you get urgent, that's an overused term, but as an employer, there you go. Try to think of a different term. Please respond. Must respond. That type of thing. But the idea is start thinking about different positions and really what do we absolutely have to have this employee or this class of employee do during these periods, and are there any periods where we can just give them a break, and say you don't have to work or communicate at all? Next slide, please.
Again, just further ways to think about it. Are there different types of messages or different individuals that an employee has to respond to? During certain periods of time can you tell the employees or have a policy that says, during these particular periods of time you don't have to respond to your other coworkers or management, but we still require you to respond to emails from customers? Or you don't have to respond to communications from vendor/suppliers but we still expect you to respond to communications from management, not coworkers. You might have a policy that's 20 pages long if you start implementing all of these ideas, but again, they're just ways for you to start thinking about what can we do with this policy? Talk to your business leaders about these different things. So again, who will the employee be receiving messages from? Do they have to respond to those individuals? Next slide, please.
Hina: Another way to approach this is to look at whether there's different subject matters that can be part of a blackout period. What you could do is you can have communications, like all communications don't need to be reviewed or responded after a certain time, or you could make that distinction where things that are administrative matters, like expense reimbursement, billing, all of that doesn't have to be responded to or reviewed right away. There's communications during a blackout period that you could even say don't have to be addressed right away expect the following, and you can list the types of communications that do need to be responded to within a certain amount of time. And again, what this will like might be specific to your business but things like scheduling of shipments, where there is a time constraint in order to respond. Then again, as Bettina mentioned, you could have that idea of all communications only need to be addressed where they're urgent or emergencies. So those kinds of things would really be, if you're going to have something like that, you need to define what an urgent communication is, what it's going to look like, what the expectation is, if you're going to have that as the subject matter. So again, these are just some more ideas of ways you can split up what a blackout period looks like, and again, you don't want to include all of these in your policy because it could be a little onerous that way. Next slide.
So part of developing and planning your policy is to look at the technology you have in your workplace and how it's being used. So you want to ask yourself, what kind of problems as a technology that our workplace uses? What kind of problems it creates. Once you know the kinds of problems it creates, can it be adjusted? For example, if you have a problem with the people sending Slack messages late into the evening, on weekends, maybe you want to look out turning off that messaging system or any other internal application, for a certain time period. I know there's certain companies that have introduced turning of their servers at certain times, altogether. Now that might not work for your workplace but that's an extreme example. Another example has been where an employee goes on vacation and they receive an email. Some companies have gone as far as to send an automatic response to the sender saying, this email will be deleted and if it's really that important to send it again when the individual returns from vacation. So these are just different examples of what companies have been doing across the globe on how to handle the development of technology and the burden that comes along with always be reachable. You might want to update your policy as you have new technologies introduced into the workplace, or just make sure that the technologies that you have it makes sense with what your requirements are within your policy. Next slide.
So there's a lot of things that emails systems, emails been a burden for a lot of people, just given how easy it is to send off a quick email at 1:00 in the morning, and you don't really think about when it reaches the other person, what it's going to entail. So there's a lot of different things you can do to utilize your email system, if you're having issues like that. lot of email systems allow for distinct absence notification. Out of office. Messages. These out of office messages could be internal to your colleagues or they could also be ones for external senders. So you want to consider whether employees should now have these constant out of office notifications. Do you want employees that are say, administrative staff, to have out of office notifications between certain hours of the day where they just are likely not reachable? If you're going to have something like that, what should these out of office notifications say? Should the one that's internal for colleagues look different than the one that's for external individuals who send emails? All of these same considerations go for voice mail as well. Perhaps text message. So these are just the kinds of things to consider about these automatic notifications as one method to introduce in your disconnecting from work policies. Next slide.
Bettina: Well that conclude the presentation on the strict legal requirements under the Ontario legislation and we're going to move into the latter half of our presentation where we will be introducing our colleagues from Europe. Before we do that I did want to address the fact that I do see that we have close to 100 questions in the chat. We don't have time during this presentation to cover questions, unfortunately, because we're trying to give you as much content as we can. What we are going to do is take the questions and, within the next week or so, we're going to be issuing another recorded session that you don't have to attend, it's not going to be live, but we're going to address everyone's questions and we will be sending out links to all of the registrants for this session so that you can, at your leisure, login to that pre-recorded presentation to see what types of questions other people had and how we address them. We do have to indicate to you that this is not intended to be individualized legal advice so we'll be addressing sort of basic questions as opposed to questions unique to particular employment situations. Of course, please feel free to contact us to have those discussions individually. On that note, we're trying something new and we are going to be, we know that everybody's having challenges developing these policies because we're getting lots of calls from clients, and we're receiving a lot of requests for help with policies. What we have developed is a checklist that will help you, as employers, to go through and figure out what are the things that we need to be thinking about as we develop our policy. We have developed a template policy, basic template policy, and we're offering that to individual employers at a cost of $1,000.00 and then, if you purchase that checklist along with the basic template policy, you'll also receive a $500.00 credit toward legal fees from anyone of us in the employment group at Gowling to help you tailor the policy then to your individual workplace. So please feel free to contact Hina or I if you'd like to have some help with the policy and take advantage of the checklist and the template policy. Or reach out to any other employment lawyer that you deal with, within Gowling, or if you have a regular corporate lawyer or someone, reach out to them, they'll direct it to us.
Okay. Now I have the pleasure of introducing our speakers from Europe. I will start first with Kevin Langford who is a partner with the firm of Arthur Cox, LLP. Kevin practices employment law in Ireland. Arthur Cox is located in Ireland. Kevin is the Head of the employment group in Ireland. He provides advice to all different types of employers in various industries from pharmaceuticals, manufacturing, retail, cultural institutions, hospitals, schools, you name it, if it's out there Kevin can provide advice there. Kevin is not only a solicitor but he is a barrister, as we refer to them in the Europe, litigator typically in North America. He practices or appears before the Workplace Relations Commission, Labour Court, Civil Courts dealing with same types of issues that we have in Canada; human rights, discrimination, occupational stress, contractual disputes, union matters, that type of thing. Kevin also engages in workplace investigations and he is involved in other organizations, health and safety groups and he assists his firm with criminal prosecutions in the health and safety realm as well. So welcome, Kevin. Thank you very much for participating.
Moving on then to Andre Pestana Nascimento. I really hope, Andre, that I did not butcher that. Andre practices in Portugal with the firm Uria Menendez. Andre is a partner at that firm, again, in the employment and pensions group. His practice is very similar to those of ours in Canada, again. He deals with employment law, employment litigation, collective bargaining, also privacy, pensions and social security law, which is a little bit different than what we do here. Andre deals with restructures, downsizing procedures and we have to remember that in Europe those types of things are a little bit different than we have to deal with in Canada. There are councils and things like that that get involved so it's a little bit more complicated. Andre also helps on the employment side of things with mergers and acquisitions, which is a very important piece of any type of transaction.
Finally, is Stefano Biagioli. And again, Stefano, I really hope I got that right. He is a partner with Gianni & Origoni in Italy. Again, Stefano is an employment lawyer dealing with all aspects of labour matters, both contentious and pre-contentious. I love the way that you put that, Stefano. I love the pre-contentious. He assists with both Italian and foreign companies to carry on business in Italy. He has significant experience in the labour aspect of things as well. Unions and industrial relations and he also appears before courts. He graduated from Luigi Bocconi University and he is a member of the Italian Bar and speaks Italian and English.
Thank you very much to our distinguished panelists for joining us. It's going to be very interesting hearing how things have progressed with the legislation in your various jurisdictions. One of the things that I want to know is that for Portugal, their legislation just came into effect in January. So it will be interesting to hear from Andre how things have progressed there in the very early stages for those folks in Portugal. Okay. Hina, can you please just start off asking the first question while I'm having technical difficulties myself and have to pull up our questions. So can you go ahead?
Hina: The way I'm going to go about this is I'm going to ask each of our panelists the same question and they can answer based on their own experience in their jurisdiction. So starting with you, Stefano, what advice did you give your clients when they first started to develop their disconnecting from work policies and how did your client get started?
Stefano: First of all, thank you very much for the introduction and for inviting us to take part in this webinar which is covering a very important topic and, as we all know, also a real challenge in the future of the employment law actually. In Italy these connection rights are strictly connected with the adoption of so called the flexible working models and they are no policies governing the right to be disconnected. In this respect we have a specific law on flexible work issued in 2017 which has been recently integrated by protocol issued by the government and social party in December. There is also an emergency legislation that with expiry, so far, at the end of June which has permitted employers to unilaterally post flexible working in companies. Basically, treated as a health and safety measure. That said, employers and employees must enter into an individual agreement which must touch the following matters. So this is our starting point with clients. Define the duration of the policy. Define the tools and instruments used by the employee to render the working activity and to grant the disconnection. Define the conducts of the employees that may trigger disciplinary measures. Define the places where the working activity is not permitted and lastly, specific training in matters of health and safety. As a conclusion, we can say that the right selection of technology and tools by the employer makes the difference in order to allow the disconnection rights of the employees. So this is an important step to consider in order to start.
Hina: Thank you. That makes a lot of sense. So, Kevin, I'm going to ask you the same question. What advice did you give your clients when they first started to draft their policies and how did your clients get started?
Kevin: Good afternoon, everyone. Or good morning, I guess in Canada. Thanks very much for giving me the opportunity to join the webinar today. We have a code of practice in Ireland. It's not legislation as such, but it's a code that was introduced under legislation, and we're coming up on its first anniversary. It was introduced in April, 2021. It essentially defines the right to disconnect and it does so by reference to three rights of employees. The first is the right to not routinely perform work outside of your normal working hours. The second is the right not to be penalized for refusing to work outside of your normal working hours and the third is a duty to respect another person's right to disconnect. They're three essential pillars in the code. In terms of advising clients on drafting policies to do with the right to disconnect, in one sense we were helped by the fact that code actually contains a sample policy which is very useful and it contains a number of template clauses that you might wish to include in the policy, dealing with such issues as the appropriateness of the content of what an out of office email message might look like. The appropriateness of arranging meetings at inconvenient times and ensuring that only those who are necessary to attend meetings are attending meetings and so on. That's all very useful content. I think a final introductory point related to the issue of right to disconnect, we have the issue also of remote working, so there is draft legislation at the moment which is about to be introduced and whereby employees can request the right to work remotely from their employer. So I think that is another related issue which is part of what we're dealing with at the moment, because obviously with the pandemic, in the last 2 years employees were working from home and pretty much all the time and that gave rise to right to disconnect issues. But it also now gives rise to the scenario where employees are looking to continue to working from home in the future.
Hina: Thanks, Kevin. I wish our legislation had a little bit more guidance about what to include in a policy but it just does not. So, Andre, in Portugal I know it's very recent. Just this past January that you've had this requirement so you can tell us a little bit about how your clients got started.
Andre: Absolutely. Good afternoon, everyone. Thank you also to Gowling for inviting us for the webinar and thank you everyone for connecting. Exactly. In Portugal the law was just passed at the end of December. It entered into force in January this year. As in Canada the law does not provide any guidance and I will just read what the law says. The law says, "The employer shall refrain from contacting the employee during the resting periods except in cases of force majeure." This is it. There is not any more guidance than this. So we are still, in the early morning, trying to understand exactly, fully understand the law. Apparently it applies to all employees. It applies to all the companies. More than a right to disconnect, it's a duty on the employer not to contact the employees. That is an important difference because if you just have a right to disconnect, which in my view we already had in Portugal, the employee is of course entitled not to pick up the phone, not to look at his email, but the employer could be able to try and contacting him. Now with this obligation not to disturb any employee during resting periods, the matter is different. I saw one of the questions. It was in the Q&A and if this applied to on call employees and I saw that that was a question for Canada but I would say that with this law that we have in Portugal, on call employees should be left out, because if you are on call, technically, you are not during your resting period. But again, there is not much guidance, so what we told our clients was that the law does not say it's mandatory to have an internal policy. Although I must say that last year the European Union has begun drafting the right of disconnecting directives. So shortly this will be mandatory across all European Union jurisdictions. So the policy for now is not mandatory but I think when speaking to clients there were pretty much three alternatives. Do nothing and rely on the employee's manager's common sense. Probably not a very good idea. Do nothing or just not approve any policy and just provide some learning sessions and training. Probably not a good idea as well. You could go the whole way and immediately implement some hardware to block or prevent servers from getting emails. Probably a little too harsh, in particular now, where we have so many employees working flexible working arrangements, or which is what we at the end of the day suggested, having a clear guideline explaining everyone what to do, what not to do, expectations, probably include some disclaimers at the end of the emails if you have a high number of employees working flexible arrangements, but for sure that the policy should be in place.
Bettina: Okay. Thank you very much. Although we're an ocean apart it sounds like there are a lot of similarities going on in each of your countries with the circles that we're having with this policy as well. So, Andre, I'm going to keep you on the hot spot, in the hot seat, when you've been talking to your clients have they indicated to you whether or not in drafting their policies, or thinking about it, are they consulting with their management teams, or just management, or the consulting with employees, or is this just more of a upper management is figuring this out on their own and they're going to implement things? What have you been seeing?
Andre: Our experience tells us that this is being decided at an upper level. So we are liaising with HR departments, legal departments, compliance departments. We don't see managers usually highly involved. Of course if you are a company with employees, representative structures, those should be consulted before the policy's actually approved. But if you don't have those structures with your company employees are not usually heard before it is approved. What we see is that this is decided by HR, legal or compliance.
Bettina: Okay. I'm going to add a tack on question to that. How do employees typically react to that type of thing and do you have any predictions as to how employees are going to react to this sort of mandated implementation of a policy? Which I get usually happens but with no consultation with business to determine this is how this particular department functions or something. How do you think employees with your clients are going to react?
Andre: So far we haven't received any negative feedback. The policy, at the end of the day, is to the benefit of everyone, particularly the employees. So even if they have not been heard, probably the one suffering more with this are the managers, because they are the ones who will need to be a little more careful before reaching out to their colleagues. From a, I would say a general perspective, we haven't received any negative feedback due to the fact that they have not been involved in the design of the policy.
Bettina: Okay. Good stuff. Alright, Kevin, same question for you then. What are you seeing in Ireland with respect to the development of the policies? Are your clients involving management or employees in the consultation process as the policy is being developed?
Kevin: Yes, so I guess the starting point in Ireland is that the code of practice does actually explicitly state that employers must engage proactively with employees and trade unions, or other employee representatives, in order to develop a right to disconnect policy. So strictly speaking there is an obligation to do so and, in fact, what's interesting is that whereas a breach of the code is not an offense in itself, any breach of the code is admissible as evidence in the context of any claim that might be brought by an employee arising from any breach of the code. So for those reasons it is critical that an employer does engage with employee and union stakeholders and so on before introducing the code. That said, I think there has been quite a divergent level of engagement. It's like everything else I guess. Some employers are very proactive and prepared, and they do well with engaging others and reacting to things in a hurry, and maybe don't consult to the extent that they should.
Bettina: Right. Okay. That's interesting. Do your clients complain at all that it's onerous for them to have to consult with management and employees?
Kevin: Not really. I think it's just more probably an issue of the, if I can call it the HR burden, because there are so many policies and procedures that have to be put in place these days that if you have to consult in relation to each one of them it can incur a lot of management time and so on. But the other question you asked, I guess, is about the employee's reaction. So even if the employer doesn't consult with the employees, or the unions, if the policy is drafted in accordance with the code, like all of the content really is in favour of the employee, and also one point to make is that the code specifically calls out the right of an employee to be able to bring a grievance if the code isn't complied with. So a grievance procedure needs to be built into the policy. A two step procedure. Informal and formal if the code isn't being complied with. So it is a favourable policy for employees, generally. It doesn't impose any major obligations on employees.
Bettina: Right.
Kevin: More on the employer.
Bettina: Okay. Just a reminder for those of us in Ontario, of course under the Employment Standards Act we too have the employees have the right to bring a complaint to the Labour Board if employers aren't complying with the Employment Standards Act and these policies, once again, if they provide a greater right or benefit would be enforceable under the Employment Standards Act. Okay, Stefano, over to you then. Are you finding that your clients are engaging in a consultative process with employees and managers as they develop the policies and is that working? Is it not?
Stefano: In general, our law does not include information on consultation duties in charge of the companies and, in general, the flexible working models follow a top down approach, especially for middle sized companies. That said, the protocol that has been issued in last December, strongly encouraged the role of the social parties and since flexible work disconnection matters deal with work/life balance, wellness of employees and also health and safety matters, the adoption of information and consultation procedures. For instance, with the trade unions could be seen in the next future as a good practice. In this respect it will be important to understand the impacts of the European directive mentioned by Andre and the enforcement of the principles of the protocol that I've explained. Since, so far, it is only a best practice. What we can see in the next future, at least in Italy, is a trend to delegate the matter in terms of flexible work, only to the negotiation employer/employee but within a level of national collective bargaining. So this will be the next step but so far we haven't experienced but very likely, according to those principles, the role of the collective bargaining will become more effective in introducing these models.
Bettina: Great. Thank you very much.
Hina: Okay, so I'm heading back to you, Andre. How do your clients deal with the different types of positions and duties and needs within the same workplace? I know your probably thinking about this right now.
Andre: Exactly. Because, again, unlike what happens in other jurisdictions in Portugal and the draft European directive goes also in the same line. In Portugal this applies to all employees. Not only to those employees who are using digital tools. So if you are working in a factory you are entitled not to be disturbed, but if you are working and you are always connected with your laptop and your mobile phone, you are also entitled not to be disturbed and your employer is obliged not to disturb you. So the law does not distinguish between different types of employees. I would say that the thing here is that if you are, for example, working flexible arrangement, if you are not bound by any specific working schedule, that means that technically when you leave the premises, if that's the case or you don't have any particular set of the working hours, which means that you can be disturbed because you are sort of on a permanent on call basis. So for managers, or for supervisors, it's easier to cope because the vast majority of them has this exemption from working schedule. Those can be actually contacted outside regular working hours. What's difficult is that the law just has a simple line and it just says that if it's not force majeure event you cannot reach out. So this of course needs to be a little tempered, I would say, but at the end of the day you need to pay close attention, as Bettina was saying previously, having a policy is not enough. You need to monitor that the policy's being complied with. Probably you're going to need to have some sort of alarms being raised when you see someone sending more than 10, I don't know 15, emails outside what's supposed to be regular working hours or at the weekends, having a conversation with that supervisor or manager, trying to understand if it was really urgent or not to show at the end of the day before the labour authorities, or even a court if you get a harassment claim, that you did your best and you really tried to monitor. But for now we don't see a differentiation in the policy between different types of employees because everyone is covered by the rule.
Hina: Okay, what about you, Kevin? Is there any sort of differentiation in your legislation, and whether there is or not, how are the employers dealing with different positions and duties in the workplace?
Kevin: Similar to what Andre was saying about Portugal, the code in Ireland applies to all employees. It doesn't distinguish between roles. The core right under the code in Ireland is that employees are not expected to respond to work emails or messages outside of working hours or during vacation. That is a core right. But I guess it's like every code, or every piece of legislation, there are always exceptions and there are some exceptions in the code and one of them is that, except for occasional legitimate situations where it is necessary for employees to engage outside of working hours, now that doesn't mean that employees should be doing it routinely every day but there is that exception. There is also an exception whereby there are genuine emergency situations which would then necessitate an employee dealing with emails outside of working hours. I guess maybe just one other point though, despite what I've just said there, I think the real issue here is regarding breach of working time legislation. If the employees aren't disconnecting and they end up habitually exceeding the maximum weekly working time limits in Ireland, which similar to Europe is 48 hours a week, with certain exceptions. But there is an exception in relation to managers or people who determine their own working time. So in other words, if someone is very senior in an organization and effectively is autonomous and determines their own working hours, then they are not covered by the restrictions that otherwise apply to other employees in relation to weekly working time limits. So I guess that maybe does give some flexibility in terms of maybe differentiating senior managers from other employees in relation to the rights to disconnect.
Hina: Then, Stefano, I'm going to ask you the same question. How are your clients handling the different positions and needs within the same workplace?
Stefano: Yes, we have the same difficulties that have been anticipated by Andre and Kevin because there is no specific direction within the regulation that we have. So we usually ask clients to duly consider the different types of positions and the impacts on their operational needs. The flexible work with particular reference to disconnection rights, I sense some difficulties, especially to manage the directional employees, top managers, supervisors, that also under our law system are outside the scope of the working time. So the enforceability of the disconnection rights is very difficult to identify and in this respect the trend is just to make reference to the general necessity to respect daily and weekly rest periods, without identifying a specific timeframe for these categories of employees.
Bettina: Thank you very much. Okay, so we've talked, in responding to the last question from Hina, you all mentioned situations with emergencies, having to deal with emergencies. Andre, in Portugal, you mentioned force majeure situations. So how exactly do your clients deal with that? I guess my question is, do the managers just send out an email saying, urgent, S.O.S., emergency, that type of thing? How is it typically handled? Or do you know? Do your clients share with you how they manage those urgent types of situations? Where you've got a policy that says, perhaps, okay employees, during these hours you don't have to respond to messages but now there's an emergency. So there's this push and pull between don't look at your phone but you better look at your phone in case of an emergency. Sorry, I'll get to my question, but it reminds me of a commercial that was out a few years ago where it was for a cold remedy, and the employee woke up and looked at her email and had a message from her manager saying, please respond to this before you wake up. It's sort of that situation. How does an employee know that they've got to respond to an emergency if they're not supposed to be looking at their emails? Andre, I'm going to start with you.
Andre: I think that's of course a funny situation but a real one. Because what we are seeing in many right to disconnect policies, which are global level, is that there's a paragraph saying, if you are receiving your email outside your regular working hours you don't have to reply it. You don't even have to go through the whole message unless it's urgent. To see if it's urgent you need to be available to look at the message and actually read the message. What we are trying to understand, first of all, is what's a force majeure event. That's the only exception we have in Portugal. Force majeure? Only if there's a fire at the premise. If there's an earthquake. If there's a flooding. That doesn't make sense. The concept here needs to be a little broader I would say, but again, there's no jurisprudence, no case law over it yet. What we are seeing and also recommending to our clients is, of course if it's an urgent matter, urgent business matter, they should send an email. Always go for the less intrusive means possible. Send an email, send a message. See if they reply. If they don't reply within a reasonable timeframe, give them a call. So that's being done on a daily basis, basically.
Bettina: Okay. Thank you very much. Kevin, I'm going to ask the same question of you. Are the Irish a little bit smarter than the rest of us and figured out a way to not look at the email but respond to emergencies?
Kevin: No. I mean there's no magic wand here. I mean emergencies happen in every employment. I suppose it's just really important to be able to provide for the situations as best you can in terms of specifically calling out in the policy, for example, but maybe emergency situations that arise from time to time where it is necessary to be contacted. Possibly also mentioning that in the contract of employment and I think also maybe where there is a situation where maybe it is anticipated that, I don't know, there might be an urgent shipment of product or something out of hours, insofar as you can possibly do this, maybe trying to have an on call system or having a rota amongst staff so that it's possible you spread the load so that one week someone might be dealing with an emergency, whereas the next week someone else might be on standby or on call to deal with that emergency situation. I think just the other part, I mean there is an another theory of common sense here. As I mentioned earlier, I think the big impact of this in terms of where it all goes wrong, is if it end up that an employee is working routinely in excess of the maximum weekly working hours. If that's the mechanism, or the route, whereby they can actually bring a claim so if you end up in a situation where, I don't know for a period of a few days or a few weeks, someone is dealing with an emergency, whether they work in IT or whatever, they end up working excessive working hours, make it up to them. Make sure they get time off, compensatory time off, so hopefully it all balances it out in the long run and they don't end up, over an extended period of time, routinely working excessive working hours.
Bettina: That absolutely makes good sense. Common sense. It should prevail. Let's hope in most circumstances. Stefano, how about in Italy, what are the processes that your clients are putting in place to deal with these emergencies? Kevin has suggested perhaps establishing on call rotating shifts. Do you see anymore of that or are your clients coming up with some great ways to handle it?
Andre: It does not include nothing, generally with respect to emergency situations, so this kind of conduct are treated on a case by case basis. Considering one principle that we have, that is not already put in practice, in our law system the definition on flexible work implies the absence of the working time schedule and autonomy of the employee and the performance of activities. So in theory, in a pure model of flexible work, you should be capable also to manage a possible or potential emergency. However, this could create, of course claims, difficulties or discourage the adoption of this kind of system. What I have seen, only one case, is a mitigant for the dealing of emergency whereby the policy stated that for certain projects, or in case of emergency, the employee would be entitled to a specific compensation or 2 additional flexible working days if the emergency has reduced, let me say the percentage of the flexible activity. However, this is not frequent. This is not frequent. So the problem is existing and, let me say, remains considering the definition of flexible work that we have.
Bettina: Right, okay. It sounds pretty similar to any situation that we normally have under our legislative requirements. You've got hours of work restrictions. You don't want to take advantage of employees. So if you have policies and you're going to have situations where there have to be exceptions, fine, don't abuse it though, employer, and if you do get into situations where you're having to exercise the exceptions on a regular basis make sure your employees are being compensated and looked after. I mean that all makes very good sense. So I'm going to move ahead because I want to make sure that we get in some of the key questions. We talked about, or Andre you brought up this idea about employees who are on flex time, and it was starting to be a trend but because of COVID we found that with people working at home, their work days just completely were blown up in terms of when they could work. Especially if they have little kids at home who they had to school and then find time to do work. So the work day just kind of blew up and became no more in terms of regular working hours and now, I'm sure you're seeing in Europe as well as we're seeing, employees really like that flexibility and they now want to insist on it as a term of employment. So if you have all different types of employees who are engaging in flexible time, how are your clients dealing with that with these right to disconnect policies, and not just the right of the employee to have flex time and you can't email me, I'm trying to put this right, because an employee is now on flex time, so let's say they're working at 10:00 at night, they've got an agreement with the employer that they're going to work at 10:00 at night but now there's sending emails because that's their working time and now they're violating the rights of other employers who don't have their schedule. Kevin, I'll start with you. Are you seeing that in Ireland and how are your clients dealing with it?
Kevin: Yeah, I think the most challenging combined set of circumstances probably are the employee who is in their job having to do different time zones.
Bettina: Right. Yup.
Kevin: Also maybe working from home, particularly in the last 2 years in the pandemic, there might be someone in Ireland which is obviously not in Europe, having to do with clients or work colleagues, indeed, in related companies in Eastern Standard Time in the US and also maybe the other way, in Asia. So they're getting it from all directions. The code isn't prescriptive in terms of when an employee must disconnect. It's just to make sure that the employee does have the opportunity to disconnect and has the right to put their hand up and sort of object if they end up having to work too many hours. It is possible to offer solutions like flexible working time and so on but I think the main thing is just to be able to ensure, and I know I've made this point a number of times today, but it's just monitoring to ensure that an employee doesn't end up working excessively. Because it is possible for employees legally to work within different time zones provided that their working pattern doesn't stretch out to the end of working more than 48 hours a week on a routine basis. I suppose, just related to that, the code also does mention the whole issue of employee well-being and welfare and stress and all of those issues. So just that employees do have, so not just maybe the right to take flexible working and so on, but also that there are clearly available mechanisms for employees. Like employee assistance programs and so on, particularly for those who are working from home and dealing with certain time zones, they know there are places they can go if they need help or support or help with mental health issues and so on that might arise.
Bettina: Sorry. I had muted myself. Thank you, Kevin, and rest assured everyone on the call I did pass grade 10 geography. I am so sorry that I keep referring to Europe. I know Ireland is not part of Europe. Andre, over to you. So it's interesting because you had mentioned that in Portugal if an employee has a flex work arrangement then the right to disconnect does not apply to them. I think that that's what you said. Correct me if I'm wrong but how does that work with other employees if the flex worker is, I had indicated is working at 10:00 at night, and the other employees are subject to the right to disconnect, how are your clients handling to that and to Kevin's point with respect to time zones as well?
Andre: Absolutely. I think that's of course the most challenging issue that needs to be addressed. First of all, if sending an email where you are copying one of our co-workers, although you are not asking anything from them, is that a contact at all? First question. I would say probably for the legislator it is a contact but I don't know if this goes to court if that's how the courts will see it because the employee is not, if he's during his resting period, he's not obliged to look at his laptop or at his mobile phone and so he was not contacted in a way that disturbed his rest. So this is something which needs to be firstly understood, if sending out emails is not a contact. Assuming it is, and policies are trying to avoid employees sending emails outside regular working hours, what we are seeing is that companies, many of them, are having a disclaimer at the end of the emails where they are saying, I work flexible work arrangements. It suits my pattern. If you are receiving this email outside your regular working hours you are not bound to reply, take any action, in relation thereto. So this is a safeguard of course for the company, but again, if you are more vigilant or diligent and you are looking at your emails while you are resting, you had to read the email before actually going through the disclaimer. So one technical option that could be feasible is to mark in the email whether or not its urgent. When you look at the email, simply by looking at the subject matter of the email, you have sort of a flag saying if you should look into it or not. So that of course reduces time spent going through the whole email. Disclaimers are used mostly by companies who have a lot of employees working flexible work arrangements or when there are many employees from other companies in different time zones sending out emails and due to the differences, of course, someone is going to get disturbed while they are resting. So disclaimers are now getting more and more popular and I would say it could work for these employees.
Bettina: I think that that's a great tip, actually, and one that I hope people on this webinar, in the audience, will take into consideration and implementing in their workplaces. It's a good practical way. An easy way to deal with that situation. Stefano, any way that your clients are handling that flex dilemma and different time zones and things like that?
Stefano: Yes, as you can understand it's not easy. This is the real challenge because we must be frequently understanding that the flexible work is a modality applying in all countries. We should consider also the disconnection times for this reason. A possible solution could be, but it must be, let me say tailored on a case by case basis, to identify a general policy with the common working times, considering if it's possible the different timing and let me say, you are required to work in all countries, for instance in all Europe, during this particular timeframe. For instance, from 8:00am until 3:00pm, apart from the situation of where you work, and to impose common schedule on when to organize meeting, or when to send an email, or when to organize call, or inform the employees on the necessity to verify the status of anyone. Because if the employees flex the disconnection status you are not entitled to send an email. This is very, very difficult to put in place. I can understand because, again, it implies a real change of the mindset. This is a challenge. This is a real challenge.
Hina: Yeah, I can see how challenging it is this flexible time and these different time zones. I really liked Andre's option of having the subject matter in the email so you can determine if it's urgent or not. What I'm wondering, beyond something like that, have any of your clients implemented technological means to enforce the policy? So you know going as far as shutting off access at certain times to certain applications, or even just tracking when employees are logging on or off. I'm going to start with Kevin.
Kevin: Yeah, no. There's been some anecdotal examples of companies, well known companies who've done that, but in my experience employers haven't generally gone that far in Ireland. As far as employers are going in Ireland is really just in setting a culture of ensuring that only urgent emails are sent outside of working hours, but not going so far as to block emails or anything like that or prevent employees from accessing emails outside of working hours. Just one other, I suppose thing, that employers have encouraged in my experience is that everyone works different working patterns, as we know, and people are busy and some people want to do some work at the weekend and maybe on a Sunday they draft emails to their team about different things, but you can put everything in draft and save it. Don't hit the send button until Monday morning. So there are things like that that can be done but I don't think, in my experience, employers have gone as far as to physically prevent employees from sending or receiving emails outside working hours.
Hina: That makes sense and you can also schedule for when emails are being sent. I know some people are encouraging that. Andre, have you had any discussions with your clients about enforcing through technological means a disconnecting policy?
Andre: Not yet. There was a couple of years ago when, Volkswagen for example in Germany, they experience this. They blocked the servers after a given hour but that's easier if you are working in a factory and you go home and probably, unless you're a manager, you don't actually don't need to be disturbed. For the financial sector, insurance, it's much more difficult. So we haven't been recommending to clients such harsh measures. We haven't seen anyone adopting those kind of technical matters. What sometimes could be suggested is, for example as Kevin was pointing out, some people are okay connecting in the weekend to at least start to solve some pending issues. Probably you could have popup showing up asking you, do you really need to copy this person? It's weekend. Can this be sent tomorrow morning? Is it okay if you send the email now although it will only be actually sent tomorrow? These sort of warnings, they can be thought over and considered by companies, but actually we haven't yet seen our clients resorting to these technical measures yet. No.
Hina: Okay. It seems like the onus is really being placed on the employee to consider when they're sending out the emails, to be mindful of other people's work schedules. So far no ones taking the, I could say draconian measures, of just cutting off access. That makes sense. What about you, Stefano? Anything with technology to enforce the disconnecting policy?
Stefano: The technology, in our experience, is the most important issue when adopting flexible work model. We have both the solution. The hard approach whereby it is the system block or postpone the communication during the disconnection times. Or a soft approach that is most used where the employee indicates their offline or disconnect status using an application. But again, the right to be disconnected would make sense if the technology selected by the employer will entitle the employee to benefit for the disconnection. As Andre said, you can imagine a system with popups, with messages, explaining that if it's a necessity or not, to flag if it's urgent or not but I think that this in respect there is a lot of work to do to have the proper technology and this is a difficult choice, let me say, for employers also to select the right instrument and tools to implement as much flexible working models and disconnection rights. That's it.
Bettina: Okay. Thank you very much and this next question is perhaps going to be a little bit harder for you to answer, Andre, because the legislation is so new Portugal. So, Stefano, I'll start with you. It was mentioned by I think a couple of you on the panel that this is going to result, or need to be a cultural or a mindset change, within the organization. Since this legislation has come out and employers have started implementing these policies, have you noticed or have clients talked about the fact that it is culturally changing or are things still just sort of status quo, despite the fact that these policies are in place and these requirements are in place?
Stefano: Consider this, Bettina, according to a recent statistic in Italy candidates seeking for flexible work modality in companies are increased by 55% as of the beginning of the pandemic. So as of March 2020. So flexible work tools, systems, deal with the well-being of the employees. Work/life balance matters and together with the adoption of well thought out plans, all these factors must be seen as the key factor for the success and for the future, in order to be appealing in the market and also to retain the talents within the company. There is a huge demand about the adoption of flexible work modality. In general, we have experienced that companies will, after the emergency, will implement structural models having 40% of flexible work and 60% of work from the office, let me say, the ordinary way. This is especially in the credit and financial sectors. Of course it depends on the activity of the company. For instance, insurance sector have a percentage of, at least in Italy, a percentage of flexible workers very consistent and this will apply also after the pandemic outbreak because companies have already structured policies and the agreement with the employees, that is necessary from our perspective, have been already signed and communicated also to authorities, this is necessary only to trigger coverage for accidents at work. This is the situation and we need to deal with attention and be ready to the change because this is what the candidates are asking within our market.
Bettina: Right. Okay. Kevin, I'll turn to you and tweak the question a little bit because, Stefano, I think you raise a really great point. Whether or employers like it or not the culture sounds like it has already changed, externally or internally, because candidates are now demanding this type of right to disconnect and flexibility which seems to go hand and hand, although it's sometimes paradoxical. Kevin, how are you seeing things in Ireland and are there generational differences in how people are responding to this right to disconnect? Are the old fogies saying, why aren't those young folks willing to answer emails after hours or is there anything like that?
Kevin: Yeah, sure. It's a very, very important issue here at the moment and since the code came in a year ago, and even before that, I think definitely there is, you know organizations are lot more mindful of them not disturbing people on weekends and out of hours. People are being a lot more respectful and even clients contacting me, if they have to outside of hours, you'll notice that they're apologetic about having to do so. When I started law many years ago it was almost a badge of honour to be working weekends and sending emails to clients and getting emails at all hours of the day and night. Those days have long gone. There is other countries on this call, I guess, there is a war for talent at the moment. Talent retention is such a huge issue for employers and that combined with the fact that a lot of the staff surveyed say that the younger generation, if I can use that term, yes moneys important and by compensation important for work/life balance is the most important thing. That's why employees often leave organizations. It's to get better work/life balance. So it's just really a critical issue here at the moment.
Bettina: Okay. Andre, I think we'll end off with you with this same question. What are the trends in Portugal right now? I mean the country has instituted the right to disconnect legislation. Are the employers already ready? Like are they gung-ho about engaging this? Is it going to be culturally accepted within organizations? Do you have the same struggles for talent, that type of thing, and will this policy help retain talent?
Andre: Absolutely. If employers are ready. No, I would say that they are not ready. In particular I would say that in Portugal and probably Stefano feels the same in Italy, Spain, Southern Europe there's a cultural thing of working late which does not necessarily mean working more. Probably you take 2 hours off to have a good lunch and you leave later in the night. So it's a cultural thing which is changing. The problem that we are seeing is that we have a sort of a generational challenge here is that most of managers and supervisors are people who were born in the 70s, 80s, and they used to work long hours and they were not so mindful of the work/life balance and they are the ones who need to contact, or not contact, their team. Younger generations are much more mindful of work/life balance. That's something, which of course clearly attracts them, more than money I would say. We see that a lot in law firms, for example. We're having difficulties trying to exactly understand what younger lawyers want, to retain talented lawyers, and so I think the cultural change needs to be centered in managers. They need to understand that what was okay for them 10 years ago is no longer okay. As Kevin was pointing out, 10 or 15 years ago we would be sending, even ourselves, lawyers, we would be sending at 1:00 or 2:00am, either because we had a busy day or because we work flexible work arrangements and we preferred. Nowadays probably we are going to thing twice before sending an email to a client at 2:00am or 3:00am in the morning because we are also mindful of the client's resting periods. So for sure there has already been a cultural change but this will not happen over night and it's a good thing that at least here, since January, we have more than a right to disconnect. We have an obligation not to contact employees.
Bettina: What a brilliant way to end off. That is great. Fabulous. Thank you so much everyone who attended. But I'm just going to say a few remarks and then turn it over to Elisa, if she's still on, to wrap up. Andre, Stefano, Kevin, your advice and your experiences so far with the legislation that you have in your countries has been really invaluable for us. Thank you so much for taking the time out of your schedules to talk to us and I think that's probably shutdown time for you guys. No more work. Get off your email. Thank you all very much again for participating and, once again, everybody who's been watching, thank you. Remember that we have a checklist template policy that we are offering so reach out to us if you need help with your templates. I'll turn it over to Elisa now to talk about the next session that's coming up.
Elisa: Thank you, Bettina. Thank you for that very informative session. Employers definitely have some work ahead of them to determine what disconnecting from work means to their organization and I think the information we learned today has been very helpful and I echo Bettina's comments. Special thanks to Andre, Kevin and Stefano for joining us today. So our next webinar is on another hot topic, remote work place. A lot of employers are moving to permanent remote work or some form of hybrid remote work, post pandemic, and there are some issues that do come up with that type of arrangement so we will be reviewing legal risks, best practices when it comes to remote workplace, that will be on April 20, and we do hope that everyone will be able to join us for that session. Again, thank you to our speakers for a wonderful session today and I wish everyone a very good day. Thank you.