Remote Working - A Roadmap for a New Way of Working

The Irish Government first published its Making Remote Work: National Remote Work Strategy in January 2021. The Strategy outlined a number of primary aims including the proposal that legislation be drafted which addresses an employee's right to request remote working.

The draft scheme of the Right to Request Remote Work Bill 2021 (the "Draft Scheme") has now been published. It has been the subject of much debate and some criticism for limiting employees' rights to continue remote working.

First of all - What is remote work?

Remote working includes both home working and working from a location other than the employer's place of business for example a co-working space. The Draft Scheme does not, as previously expected, confine the definition of remote working to working in Ireland. In theory an employee could ask to continue to work remotely from another jurisdiction. This requires careful consideration. Tax (both personal and corporate), social security and local employment law issues need to be fully considered before a permanent remote working arrangement outside of the jurisdiction is implemented.

Who can request remote working?

Under the Draft Scheme employees with a minimum of 26 weeks continuous service can make a request to work remotely. This includes full time, part time and temporary employees.

Until the new legislation is enacted however any employee can request these arrangements. It is still recommended that any request for remote working by an employee is carefully considered and the response and reasoning documented carefully.

How does an employee make a request?

Under the Draft Scheme, the request must be in writing. It is recommended that the employer issue a form to employees to submit their request. The request should include a written self-assessment of the suitability of the proposed remote work location including the specific requirements of the job, data protection, confidentiality, reliability of internet connectivity and the ergonomic suitability of the workplace.

Until the new legislation is enacted it is still advisable to require a written request from employees.

How and when should the employer respond?

• Under the Draft Scheme, the response must be issued within a reasonable time period and in any event no longer than 12 weeks. This is a long time for an employee to wait and many employers would typically respond in 4-8 weeks;

• The employer must give the application due consideration and where it decides to decline the request it must communicate the reasons for the refusal to the employee. The refusal must be related to "business grounds" a non-exhaustive list of which is included in the Draft Scheme.

• The employer must provide full details of the arrangement where the response is favourable including provision for review of the arrangements and details of what equipment the employer is providing.

• Once an employee's request has been assessed correctly by the employer, an employee is not entitled to submit another request for a period of 12 months although clearly that could be waived by the employer.

What are the grounds on which the employer can refuse a request for remote working?

• An employer can refuse a request for "business grounds" including but not limited to:

• Inability to redistribute work to other staff;

• Potential negative impact on the quality of product or service;

• Potential negative impact on performance of the employee or other employees;

• Concerns for the protection of intellectual property, confidentiality of information and data protection;

• Health and safety;

• Internet connectivity;

• Planned structural changes to the business; or

• If the employee has been recently or is currently involved in a formal disciplinary process.

Can an employee challenge the grounds for refusal on the part of the employer?

In short – no and this has been criticised as a key weakness in the Draft Scheme. The employee can only complain to the Workplace Relations Commission (the "WRC") where the employer has failed to comply with the technical requirements of the format and timelines for a response. The employee cannot complain about the validity of the reasons given.

The employee must exhaust internal procedures first and can only submit a complaint to the WRC two weeks after the commencement of the internal appeal process.

The WRC can direct the employer to communicate a decision and the notice of the grounds for refusal as necessary. The WRC can also direct the payment of compensation of up to four weeks remuneration.

An employee is also protected from penalisation for proposing to exercise or exercising their entitlement to request remote working.

Code of Practice

It is expected that the WRC will prepare a non-binding but statutory Code of Practice on the right to request remote working in the coming weeks.

The Health and Safety Authority has already published useful non-binding guidance on Remote Working arrangements which is a useful resource HSA Guidance on Remote Working

So for now what should Employers do when considering remote working arrangements?

Employers should prepare to articulate a policy on remote working which is not confined to responding to the Covid-19 pandemic but reflects the employer's policy on remote working into the future.

The legislation is at an early stage but it is recommended that employers consult with their employees or at least take feedback through pulse surveys to change or implement a new policy.

Employers should consider how managers will be equipped to handle remote working requests to ensure that the response is communicated on time and in accordance with the employer's obligations.

Many businesses are well advanced in articulating their hybrid working arrangements. For employers who need to deal with permanent remote work requests now consider the following:

What does the contract of employment provide in relation to the contractual work location?

How has remote working operated to date with the employee?

Consider an extension or a trial period for the new remote working arrangement and build in a date for review of the arrangement.

Document the reasons why the decision is to refuse if that is the decision. The decision should be objectively fair and reasonable.

Formally amend the contract of employment with details of any permanent remote working arrangement.

The Draft Scheme remains controversial and we await an update on whether the legislation will serve to strengthen employee's rights to insist on a fair adjudication of any application to work remotely beyond the pandemic and to seek redress if those rights are breached. Watch this space.

Karen Killalea, Partner and Head of Employment Maples and Calder (Ireland) LLP

Contributor Profile

Karen Killalea is head of Maples and Calder's Employment team in the Maples Group's Dublin office. She has over 20 years’ experience advising clients on all aspects of employment law including contractual matters, sensitive investigations, employee privacy issues, GDPR, gender pay gap preparation, TUPE, HR aspects of corporate re-structuring and asset disposals, industrial relations, working time, equality issues, executive compensation, removal of directors and senior executives and the protection of confidential information.