An Update on The Right to Request Remote WorkingPosted in : Supplementary Articles ROI on 4 October 2022
This Autumn, the Irish government plans to progress legislation on an employee’s right to request remote working arrangements as a matter of priority. In this article, Síobhra Rush, Partner and Joanna Mackey, Managing Practice Development Lawyer, Lewis Silkin looks at how 20 recent recommendations are potentially going to shape the legislation.
Plans are in place to make remote working a permanent feature of Ireland’s workforce. Remote work has certainly moved into the mainstream of workplace issues, following the huge rise of home working brought about by the Covid-19 pandemic, and there is a general perception that some employers are struggling to get their employees back to the workplace unless they mandate it, which has talent attraction/retention implications for them.
A General Scheme on the right to request remote work (“General Scheme”) was approved by the Irish Cabinet on 25 January 2022. This set out a legal framework around requesting, approving or refusing a request to work remotely. The proposals came under a lot of criticism, with unions feeling that the proposed law would favour employers when it came to grounds for refusal of a request to work remotely and an appeal of that refusal. In particular, unions were scathing of the fact that employees could not bring a claim against their employer to the WRC, if the request had been refused, only if it had been ignored, or dealt with inadequately. Employers also questioned the need for legislation, highlighting the additional administrative burdens for businesses. Pre-legislative scrutiny on the General Scheme has since concluded, resulting in 20 recommendations intended to help the Government improve and progress the legislation this Autumn.
The Remote Work Recommendations
The Joint Committee on Enterprise, Trade and Employment (the Committee) published its report in the summer, which included the 20 recommendations. The recommendations centre around ensuring that remote working is as accessible as possible for employees. This includes reducing the service requirement to make a request from 26 to 12 weeks (or less), reducing the time allowed for employers to respond to requests and making the business grounds for refusing a request more objective. The Committee recommends that remote working should also incorporate hybrid and flexible working.
The recommendations are summarised below:
- Reduced service requirement: The Committee proposes that the current continuous service requirement of 26 weeks to request remote working be removed. It proposes that this should be reduced to 12 weeks or less.
- Bureaucracy: The Committee recommends that bureaucracy around the drafting of remote working policies be kept to a minimum and acknowledges the difficulties felt by SME’s around the drafting of such policies.
- Codes of Practice: The Committee proposes that the Workplace Relations Commission (WRC) should establish a Code of Practice (based on principles set out in law), upon which employers’ policies could be based. This would give employers a model policy to follow with limited administrative cost. The Committee further advises that the WRC Code of Practice should accompany the primary legislation, to help encourage employer and employee reasonableness in dealing with requests.
- Reworking policy requirements: The Committee recommends revisiting and correcting an anomaly in the General Scheme whereby it’s not an offence to not have a remote work policy but it is if an employer doesn’t inform employees of its policy.
- Reduced time limit for employers to return decision: The Committee recommends that the amount of time an employer has to respond to an employee’s first request to work remotely should be reduced. However, the Committee recommends that the 12-week period to do so should be retained in circumstances where the employer is developing its remote working policy for the first time, or if the employer can cite a reason for an extension of time to consider a request, such as the need to engage health and safety consultants or check a proposed remote working location for internet quality.
- Refusing a request to work remotely: The Committee recommends that the wording of certain grounds for refusal should be revisited, alongside strengthening objectivity in 10 of the existing 13 non-exhaustive grounds for refusal.
- Encouraging ‘digital first’ environments: The Committee recommends that the legislation should encourage ‘remote first’ and ‘digital first’ environments, which ensure equality between workers regardless of their location.
- Alignment: The Committee proposes that the legislation should be aligned with the General Scheme of a Work Life Balance and Miscellaneous Provisions Bill. It remains to be seen how this will be worked out, but the Committee recommends that remote working should incorporate hybrid and flexible working as well.
- Flexibility: The Committee recommends that codes of good practice are evolved quickly, allowing for a review or reversal of working arrangements in some instances. There should be flexibility regarding the number of requests to remote work. The Committee also acknowledges that the draft legislation only deals with the employee making the request to work remotely. It notes that in some instances, employers may wish to change how they operate by asking employees to work remotely.
- Appeals against policies of the employer: The Committee recommends that employers and the WRC be given time to adapt. However, if after a reasonable amount of time, an employer’s policy should be open to challenge if it is leading to a high level of refusals of reasonable requests. If individual appeals result in overwhelming claims to the WRC, appeals against the policy of an employer could be an alternative approach to resolving issues.
The recommendations provide an indication on how remote working legislation might develop. Members of the Committee agreed that, in its current form, the General Scheme is ‘heavily stacked against the employee’ and that employers should approach the legislation with ‘the intent of granting remote working requests where possible’. However, it is difficult to see how a “one policy fits all” in regard to remote work will work, as it is very employer/business operation specific. That said, employers should be prepared for the adoption of these recommendations which aims to make remote working more accessible for employees.
The full recommendations are available here.This article is correct at 04/10/2022
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