Anne O'Connell Solicitors | View firm profile
The Covid-19 Pandemic has seen remote working become a staple of the Irish workplace and with it, the Government has reiterated its commitment to its Remote Working Strategy. On 25th January 2022, the Department of Enterprise, Trade and Employment published the eagerly anticipated draft Scheme of the Right to Request Remote Working Bill 2021 (the “Bill”), which it hopes to pass into law by summer 2022. The Bill provides employees with a right to request remote working but not a right to remote working per se, which has attracted some criticism. The Government has been criticised for the grounds of refusal being too wide and not enshrining a right to remote working rather than a right to request remote working into law.
The grounds upon which a request can be refused are similar to those provided for in UK legislation although that legislation allows for job sharing, remote working and other flexible work arrangements. Further the UK’s legislation does not include words such as ‘potential’ that appears in the Bill. In the UK these grounds have provided employers with much latitude to reject a work from home request and are currently under review to increase employee’s rights. It is proposed in the UK that workers could request remote working from the first day of their employment and that flexible working would be the default position.
In Ireland, Data Protection and Health & Safety requirements are legitimate concerns for employers. Current Health & Safety legislation provides for employers to carry out a risk assessment of workspace, which may cause practical difficulties for both employee and employer if this is in their private home. It remains to be seen whether this will create a bar to requests being granted and who will carry the cost burden of such a risk assessment, especially as it is in the employee’s interest that the workspace meets with the health and safety requirements. Employers will have to be mindful when making a decision that they are not basing it on the employee’s family or other status.
The main provisions of the Bill are:
- Employers must ensure they have a written ‘Remote Working Policy’ in place as a failure to do so will be deemed an offence and any current policies that do not comply with legislation will become void.
- The employee must have 6 months service with the employer and make the request in writing. They cannot make a second request within a 12-month period from the date of the decision.
- The employer must reply within 12 weeks of the request
- The request can be accepted, partially accepted or rejected. If the employer declines the request, it may only do so on the following grounds:
- The nature of the work not allowing for the work to be done remotely
- Cannot reorganise work among existing staff
- Potential negative impact on quality of business, product or service
- Potential negative impact on performance of employee or other employees
- Burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business
- Concerns re the protection of business confidentiality or intellectual property
- Concerns re the suitability of the proposed workspace on health and safety grounds
- Concerns re the suitability of the proposed workspace on data protection grounds
- Concerns re the internet connectivity of the proposed remote working location and employer’s onsite location
- Concerns for the commute between the proposed remote working location and employer’s on-site location
- The proposed remote working arrangement conflicts with the provisions of an applicable collective agreement
- Planned structural changes would render any of the above applicable
- Employee is the subject of ongoing or recently concluded formal disciplinary process
- If the request is denied the employer may make alternative remote working suggestions
- The employee may appeal the decision to the WRC but only 2 weeks after the commencement of any internal appeal procedure set out in the employer’s remote working policy
- The Bill confers a right not to be penalised due to requesting remote work or working from home
- The employer should consult with the employee about their request and establish how each party foresees a new arrangement working or look for alternatives if the request cannot be agreed to
- All requests should be dealt with quickly and transparently
As with employer’s obligations under the Protection of Employees (Part-Time Work) Act 2001, it is expected that if this Bill passes into law, employers will be required to give due consideration to all requests made on foot of its Remote Working Policy, having regard to employment equality legislation and ensuring fairness for all employees. It will be necessary to consult with employees and ensure that it provides clear reasons for any rejection of a request.
It is expected that data protection may become a regularly invoked ground due to the ever increasing risk of cyber crime. Cyber attacks are an area of legitimate concern for employers in deciding to grant or deny a request to work from home. It will be essential that employers have robust IT and security systems in place to protect themselves against breaching data protection laws and exposing their client’s data if employees are to work remotely and access sensitive company data off site. The Data Protection Commission provides tips and guidance on how best to protect you and your employees from breaches at www.dataprotection.ie.
Employers should ensure that they have a clear Remote Working Policy in place. It is hoped that legislation will be passed by Summer 2022 so it would be advisable for employers to assess their current working practices and their ability to facilitate requests in anticipation of the Bill’s enactment.
Authors – Anne O’Connell and Nicola MacCarthy