As the law stands, there is no inherent right under Irish employment law to work from home. However, since the Covid-19 pandemic there has been a greater demand amongst the work force for greater flexibility in terms of working hours and locations.
A new bill has been proposed which, if signed into law, would create a right to request to work remotely for employees. The Bill also proposes to place a responsibility on employers to adopt guidelines and procedures in relation to remote working. The Bill proposes a standard formalised procedure through which remote working requests must be dealt with, and creates a recourse for employees to the Workplace Relations Commission if the procedure is not followed.
It should be emphasised that the Bill does not create a right to work from home, but merely a right to request to work from home. The employer is granted a wide discretion in deciding whether or not to grant permission to work remotely, and the Bill lists a variety of factors which employers may take into account when assessing the request.
The Draft Scheme of the Right to Request Remote Working Bill 2022
The definition of remote working in the Draft Bill is the practice of an employee carrying out their contractual work duties at their residence, or in some other location that is not their employer’s place of business.
The aim of the legislation is to provide a standard level of protection to all employees. It proposes to render existing features of arrangements which effectively make remote working requests impossible null and void.
The Bill proposes that employees be entitled to submit a request for remote working once they have completed 26 weeks of continuous service. There must be a period of 12 months between each request.
Obligations on Employees
- Proposed working location
- Proposed start date
- Proposed number and timing of working days to be worked remotely
- Details of previous requests
- Self-assessment of suitability of proposed working location regarding the specific requirements of the job. E.g. data protection, minimum levels of internet connectivity, equipment and furniture requirements for workspace.
The Decision to Grant/Refuse Permission to Work Remotely
The employer must return a decision within a reasonable time period as specified in their Remote Working Policy, which must not exceed 12 weeks from the date the request was received.
If an employer, after consulting with the employee and/or their trade union (if recognised by the employer) is accepting the request, they must include in the written confirmation:
- The exact details of the proposed arrangement
- Proposed start date
- Proposed end date if for a trial/temporary period
- Detail of any ongoing review requirement if for an indefinite duration
- Details of any equipment to be provided by the employer/allowances payable for costs.
Where the employer is unable to agree to the request but is willing to offer an alternative remote working arrangement, the employee must respond in writing, setting out reasons for accepting/rejecting the offer within one month of receiving the offer. Any confirmation from the employer upon the employee’s acceptance must also set out the details of the alternative agreed arrangement set out above.
An employer may decline the request after giving it due consideration where satisfied that the proposal is not suitable on business grounds. ‘Business grounds’ may include:
- Nature of work doesn’t allow remote working
- Cannot reorganise work among existing staff
- Potential negative impact on product/service quality
- Potential negative impact on performance of other staff
- Burden of additional costs
- Concerns re protection of business confidentiality and intellectual property
- Concerns re suitability of workspace re health and safety
- Concerns re data protection in proposed workspace
- Concerns re internet connectivity
- Concerns re commute between remote working location and contractual place of work
- Proposed arrangement conflicts with the provisions of an applicable collective agreement
- Planned structural changes
- Employee is the subject of ongoing or recently concluded formal disciplinary process.
This list is not intended to be binding or limiting. It is described in the explanatory notes to the draft bill as indicatory only.
Appealing the Decision:
The employee may make an appeal under the Workplace Relations Act 2015 if;
- The employer has failed to return a decision in time
- The employer has failed to provide notice of the grounds for refusal
- The employer’s notification in relation to withdrawn proposals did not satisfy the legislative requirements.
An appeal under the 2015 Act cannot be lodged until two weeks after the commencement of the internal appeal process providing for within the employer’s remote working policy.
An employee cannot be penalised for requesting to remote work. This will also be subject to the Unfair Dismissals Act 1977 to 2015.
Compensation for a successful appeal in the WRC cannot exceed 4 weeks remuneration. The adjudicator, where a complaint is well-founded, direct an employer to return a decision in compliance with the Bill within four weeks.
The Minister may request the WRC to prepare a code of practice guide employers and employees in relation to the requirements of the Act.
Obligations on Employers
Employers will be required to create and maintain a written statement tilted ‘Remote Working Policy’. This will specify the manner in which remote working requests will be managed, and conditions which will apply to remote working generally within the organisation. This policy must be brought to the attention of employees upon and commencement of employment and at least annually. It must be written in a manner which is reasonably likely to be understood by employees.
The Bill proposes to create a new offence for failure to bring an established and maintained Remote Working Policy to the attention of employees without reasonable excuse. This will be a summary offence, subject to a class C fine. The employer may raise the defence that due diligence was exercised and reasonable precautions were taken to ensure compliance with the requirements of the Act. The Commission has the power to bring proceedings in this regard.
The Future of the Bill:
The Draft Bill has not yet passed through the Houses of the Oireachtas, and indeed, it remains to be seen will it ever come into fruition or remain in its current state. However, employers should be mindful of the possibility of such a change, and the creation of policies and procedures in advance of any changes in employment law regarding remote working can only be of benefit to the employer.
