by Breda O'Malley January-25-2022 in Employment Law, Mediation, COVID-19

For the first time in Ireland, the Right to Request Remote Working Bill 2022 provides for a legal framework for remote work.

Remote work is work that takes place anywhere outside the traditional prescribed workplace.

The draft Scheme on the Right to Request Remote Working Bill 2022 (“the Scheme”) and the Tánaiste’s commentary around same present a clear picture of the Government’s vision of remote working in the Republic of Ireland for the future. It reflects the pursuit of the Government’s agenda to promote hybrid working as a permanent feature in this country.

The Tánaiste at a press conference following the release of the Scheme today stated:

“I want workers to be able to work from home or remotely or hybrid if they want to. So long as the business gets done and services are provided, employers should facilitate it”.


A Code of Practice

A Code of Practice is to be developed by the Government in order to provide guidance to employers in developing a remote working policy, which employers will be obliged to do.  


When can an employee request to work remotely?

An employee will be entitled to submit a request to their employer to work remotely once they have been employed by their employer for a period of six months. However, an employee can also make such a request from recruitment stage, if the company’s policy provides for same. 


How can an employee request to work remotely?

An employee will need to give notice in writing of the full details of their proposal, which should include:-

  1. proposed remote working location;
  2. proposed start date for remote working arrangement;
  3. proposed number, and timing, of working days to be worked remotely;
  4. if the employee made a previous request to the employer for remote working and the date of same; and
  5. which should include a self-assessment of the suitability, of various features of the more working arrangement, for example how the employee will satisfy concerns in respect of data protection, confidentiality, internet connectivity and ergonomic suitability.  


Agreeing a request for remote working

An employer will have a maximum of 12 weeks to respond to an employee’s request to work remotely, but can also respond sooner if they so wish.

Once an employer has concluded their consideration of the employee’s request and consulted the employee or the trade union (if recognised by the employer) of which he or she is a member, they must confirm in writing if they are agreeing to the request.

The written confirmation must include, but is not limited to:-

  1. exact details of the proposed remote working arrangement;
  2. proposed start date for the arrangement;
  3. where approval is for a trial or temporary period the proposed end date;
  4. where it is to be for an indefinite duration, details of any ongoing review requirement; and
  5. details of any equipment to be provided by the employer or allowances payable to the employee to cover costs associated with remote working.

In circumstances where the employer is unable to grant the employee’s request, they may present the employee with a counter-offer which must conform with the aforementioned points.


Can an employer deny an employee’s request to work remotely?

An employer can decline a request for remote working on “business grounds”. However, it is important to note that an employer can decide subjectively on what suits their business, and is not limited to the 13 business grounds specified in the scheme as follows:-

  1. the nature of the work not allowing for the work to be done remotely;
  2. cannot reorganise work among existing staff;
  3. potential negative impact on quality of business product or service;
  4. potential negative impact on performance of employee or other employees;
  5. burden of additional Costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business;
  6. concerns for the protection of business confidentiality or intellectual property;
  7. concerns for the suitability of the proposed workspace on health and safety grounds;
  8. concerns for the suitability of the proposed workspace on data protection grounds;
  9. concerns for the internet connectivity of the proposed remote working location;
  10. concerns for the commute between the proposed remote working location and employer’s onsite location;
  11. the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement;
  12. planned structural changes would render any of (a) to (k) applicable; and/or
  13. employee is the subject of ongoing or recently concluded formal disciplinary process.


Can an employee appeal an employer’s decision?

An employee will have the right to appeal to the WRC and on appeal in the Labour Court where an employer has:-

  1. failed to respond to a request; and
  2. failed to provide any reasonable grounds for refusal of a request for remote working.

It is important to note that the right to make a complaint to the WRC is not intended to extend to a right to complain in respect of the substance or merits of an employer’s decision to decline a request and extends only to technical grounds whereby the employer has failed to respond to the employee within the prescribed timescale.


Conclusion

When enacted, this new Bill will bring significant changes to the employment law landscape in Ireland. This is especially so in circumstances where there is government strategy designed to encourage employers to facilitate employees to work remotely. For further information or to discuss, please contact Breda O'Malley bomalley@hayes-solicitors.ie at Hayes solicitors LLP. 

Breda provided commentary on the draft legislation on RTÉ Radio 1 Drivetime, you can listen here [interview at 49:20]. 

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About the Author

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.