knowledge 26 January 2022 |

Right to Request Remote Work – Legislation on the Horizon

The Draft Scheme of Right to Request Remote Work Bill 2022 (the “Draft Scheme”) was published by the Minister for Enterprise, Trade & Employment this week. The Draft Scheme, which is intended in part to make remote working (whether in an employee’s residence or in some other place other than the employer’s place of business) a permanent feature of Irish workplaces, follows the commitment to such legislation made in the Remote Work Strategy published in January 2021 and follows a public consultation. The Draft Scheme provides the broad outlines of a legal framework regarding the management of requests for remote working, with which employers will have to comply.

Making a request

Employees would be entitled, under the Draft Scheme, to submit a request for remote working provided they have completed at least 26 weeks’ continuous service with their employer. Such a request must be in writing and provide details of the proposed arrangement, including location, start date, working pattern, and a self-assessment of the suitability of the remote workplace regarding data protection, confidentiality, internet connectivity, ergonomics, and equipment requirements. Assuming the employee remains in continuous employment in substantially the same position, only one such request may be made in any twelve-month period.

Dealing with a request

Employers may, under the Draft Scheme, seek additional documentation or invite an employee to discuss the request; failure by the employee to comply with this may result in the request being deemed to be withdrawn. Employers would be obliged to consult with the employee and any recognised trade union before approving (in whole or in part) or declining the request, in writing, within a reasonable time period not exceeding twelve weeks from the receipt of the request. Such confirmation should be accompanied by, inter alia, details of the arrangement, any applicable trial period, any ongoing review, and any equipment or allowances to be provided to the employee. A ‘counter-offer’ by the employer may also propose an alternative remote working arrangement.

Declining a request

Under the Draft Scheme, employers may, following due consideration, decline a request where satisfied that the proposal is ‘not suitable on business grounds’. A non-exhaustive list of such business grounds are given, with many being broad in nature, including those relating to the nature of the work, organisation of staff, negative impact on employee performance or quality of products or services, and the burden of additional costs (having regard to the scale and resources of the employer’s business). Other grounds include where the employee ‘is the subject of [an] ongoing or recently concluded formal disciplinary process’, concerns about confidentiality, data protection, intellectual property, and workspace health and safety. The business grounds include those that may exist now or in the future as a result of ‘planned structural changes’ and there is no requirement in the Draft Scheme that the employer’s ‘business grounds’ be themselves based on reasonable grounds.

Remedies

An internal appeals process will be a likely feature of the final legislation. Employees would also be entitled to take a complaint before the WRC in respect of non-compliance with the requirements of the eventual legislation, although the Draft Scheme makes clear that this is not intended to provide a right of appeal in respect of the substance or merits of any decision to decline a request. In addition to the power to direct an employer to comply with any eventual legislation, the WRC would be empowered to award up to four weeks’ remuneration in compensation to an employee in respect of any contravention. The Draft Scheme also provides protection for employees against being penalised as a result of exercising or proposing to exercise their entitlements.

Concluding remarks

While there has been some media commentary about the Draft Scheme lacking teeth, it does propose new compliance requirements for employers, including the obligations in relation to the processing of such requests and a requirement to ‘establish and maintain’ a written policy regarding both requests and the general conditions applicable to remote working. The Draft Scheme does not require that such a policy be the subject of consultation with staff or trade unions. While many employers may already have established such procedures, these will need to be revised once a Bill is ultimately enacted, particularly as failure to establish and maintain a policy would be a criminal offence under the Draft Scheme. Such a policy would also be a prescribed particular to be provided to employees upon being recruited by a new employer.

While the legislation is in its embryonic stages, its likely features should be a factor in how employers manage the phased return to the workplace announced by the government from 24 January 2022. Changes to the Work Safely Protocol are expected shortly.

Also contributed by David McCauley