Ireland Long awaited insight into the right to request remote working – Lewis Silkin

The Department of Enterprise, Trade and Employment has published a draft ‘general scheme’ (the draft scheme) which gives details of what is likely to be contained in the Right to Request Remote Working Bill. The draft scheme has been developed following a public consultation exercise, liaising with both employer and employee representative groups, and considering best practice internationally. The draft scheme envisages a Code of Practice being developed by the Workplace Relations Commission which will provide employers with more guidance on managing remote working requests.

The draft scheme will need to undergo scrutiny by an Oireachtas Committee before the text of the bill is finalised. The bill will then need to go through all stages in the Dáil and Seanad before it can be enacted. Therefore, it is likely to be Q2 at the earliest before the bill is enacted and the Tánaiste has indicated he hopes to publish the legislation by Easter with it being passed during the summer.

Information about the draft scheme

Who can request remote working?

Employees must have 6 months’ service with an employer before they can make a request for remote working. Employers can, of course, provide for requests and facilitate remote working requests sooner if they wish.

What is the process for requests?

Firstly, employers must put in place a Remote Work policy setting out the procedure which must be made available to employees and can be inspected by the Workplace Relations Commission. Employers can decide their own timeframe for responding to requests, but this cannot be longer than 12 weeks. This gives employers some breathing space in terms of any further assessment they need to do before making a decision e.g. a health and safety assessment. Employers must set out the timeline for responding to requests in the Remote Work policy.

Employees have obligations regarding the information they must provide with their request and can be asked for further details by the employer. This information includes but is not limited to:

  • The proposed remote working location;
  • The proposed start date for the remote working arrangement;
  • The proposed number, and timing, of working days to be worked remotely;
  • If the employee made a previous request to the employer under the legislation and the date of the most recent previous request; and
  • A self-assessment of the suitability of the proposed remote working locations regarding specific requirements for carrying out the job such as data protection and confidentiality, minimum levels of internet connectivity, ergonomic suitability of the proposed workspace and any equipment or furniture requirements.

Employers can put in place specific forms that employees must complete when making a request. These forms should outline the minimum information the employee must provide. The draft scheme envisages the employer and employee meeting to discuss the request.

Employers can also propose different arrangements to those proposed by the employee and employees must confirm or reject that proposal within a month. Where they reject the counter proposal, they must state their reasons.

When can an employer refuse a request?

The draft scheme provides that the following reasons may form the basis for employers refusing requests:

  • The nature of the work not allowing for the work to be done remotely;
  • Inability to reorganise work among existing staff;
  • Potential negative impact on quality of business product or service;
  • Potential negative impact on performance of the 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 regarding the protection of business confidentiality or intellectual property;
  • Concerns regarding the suitability of the proposed workspace on health and safety grounds;
  • Concerns regarding the suitability of the proposed workspace on data protection grounds;
  • Concerns regarding the internet connectivity of the proposed remote working location;
  • Inordinate distance between the proposed remote location and the employer’s on-site location;
  • If the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement;
  • Planned structural changes; and
  • The employee being subject to ongoing or a recently concluded formal disciplinary processes.

Helpfully for employers this list is not exhaustive so the draft scheme does recognise there may be other reasons that justify an employer refusing a request. The draft scheme explanatory notes also give some helpful, practical detail and examples on some of the refusal reasons. It’s likely that the Code of Practice will provide further examples and guidance.

The draft scheme also provides that employers can consider a request as ‘withdrawn’ (once the statutory 12 week request period has passed) where the employee fails to provide any additional information sought by the employer to consider the request or where they fail to attend any meetings arranged to discuss the request. This is welcome as it places an onus on employees to engage with the process and not just submit a basic request.

What needs to be done when a request is approved?

The employer must confirm in writing if they are agreeing to a request and this confirmation should include the following:

  • Exact details of the proposed remote working arrangement;
  • The proposed start date for the arrangement;
  • Where the approval is for a trial or temporary period the proposed end date;
  • Where is it is to be for an indefinite duration, details of any ongoing review requirement; and
  • Details of any equipment to be provided by the employer or allowances payable to the employee to cover costs associated with remote working.

This section is helpful for employers as it clearly envisages that trial periods may be used to see if the remote working arrangement will work.

Can employees keep making requests?

Not exactly. The draft scheme envisages that where a request has been properly assessed by the employer and any appeals dealt with, then the employee will not be able to make a further request for another 12 months. However, if they change role in the meantime, this 12-month waiting period won’t apply and they can make a further request in relation to the new role.

What claims and complaints can an employee make?

Under the draft scheme, employees have the right to appeal their employer’s decision and can’t make a complaint to the Workplace Relations Commission until 2 weeks after the commencement of the internal appeals process. The appeals process should be set out in the Remote Work policy (or contact of employment or collective bargaining agreement, if applicable).

This timeframe seems very tight from a practical perspective and quite onerous on employers so this may change before the legislation is finalised.

Employees can make a complaint to the Workplace Relations Commission where their employer has failed to respond to their request or where their employer has not provided any reasonable grounds for why the request has been refused. They can also lodge a complaint where their employer has determined a request to be withdrawn by the employee for failure to engage in the process.

The explanatory information in the draft scheme makes it clear that the right to make a complaint to the Workplace Relations Commission in relation to the employer’s refusal is only in relation to their failure to comply with the procedural aspects of the legislation and is not intended to extend to a right to complain about the substance or merit of the employer’s decision to decline a request.

In relation to these complaints, the draft scheme provides that the Workplace Relations Commission can do one of the following:

  • Declare the complaint was or was not well founded;
  • In relation to claims in respect of the failure by the employer to respond or provide reasons, direct the employer to do so within 4 weeks; or
  • Award up to 4 weeks’ remuneration

Employees are also protected from being penalised by their employer for seeking to avail of the right to request remote working. This is very similar to other employment legislation which provides protection against penalisation.

Potential criminal sanctions?

The draft scheme envisages that failure to have a Remote Working policy in place that is brought to the attention of employees will be an offence liable on summary conviction to a class C fine (currently €2,500). However, it shall be a defence for an employer to show they exercised due diligence and took all reasonable precautions to comply.

Workplace Relations Commission inspectors can also issue fixed payment notices for failure to comply with the requirements around establishing and maintaining a Remote Working policy.

What records must an employer keep?

The draft scheme provides that employers must keep records to show that the legislation is being complied with. These records must be retained for at least 3 years.

It will be an offence not to comply with the record keeping obligations, liable on summary conviction to a fine of €1,000.

What should employers do now?

The draft scheme provides that all employers must have a written Remote Work policy, which sets out how requests should be submitted and processed and the conditions that will apply to remote working in general within the organisation.

The draft scheme also provides that this policy should be provided to new employees with their statement of terms and should be brought to the attention of all employees once implemented and at least annually and any time changes are made to the policy.

Many employers may already have put policies or guidelines in place for remote working arrangements when considering employees returning to the workplace following almost two years of remote work. These policies and guidelines should be reviewed to ensure they comply with the legislation once enacted and may need to be updated.

The Code of Practice to be developed is expected to provide more guidance on what should be included in Remote Work policies.

Given the assessment that will need to be carried out by employers in considering requests, various stakeholders within the organisation will need to be involved in developing the Remote Work policy. This would include working with the risk, compliance and health and safety teams on developing a remote work health and safety assessment and working with the IT team on the minimum technical requirements that will be needed in the remote work location.

Employers should also develop remote working agreements and guidelines that employees are provided with and sign up to when working remotely. This should cover areas such as health and safety, minimum requirements on attending the office, confidentiality, and data protection.

The General Scheme and the Regulatory Impact Assessment in respect to the proposed legislation are available here.

If you need assistance in preparing a Remote Working policy for your organisation, please contact any of the Lewis Silkin Ireland team.

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