Companies with staff on both sides of the border should develop uniform policies on hybrid working, an employment solicitor has said, as the Republic prepares to enshrine the right to request remote working in law.
orthern Ireland employees with a minimum of 26 weeks’ service already have the right to request remote working under existing laws on flexible working.
But in the Republic, there will be a new right to request remote working, with an anticipated qualifying period of 12 weeks.
The right to make the request is enshrined in the Employment Rights (Northern Ireland) Order 1996 and other rules. All employees have a statutory right to ask employers for a change to their contractual terms and conditions of employment to work flexibly.
And if any employer refuses the request for flexible working, in some circumstances an employee can bring an action to the Industrial Tribunal.
If the tribunal finds in the worker’s favour, they can be compensated with up to eight weeks’ pay, to a maximum of £3,920.
In the Republic, employers may have to compensate workers with up to four weeks’ pay if they do not give adequate consideration to their personal situations when dealing with requests for remote working.
Under legislation set to come into force next month, workers will be able to take a case against their employer to the Workplace Relations Commission (WRC) if they feel their remote-working request has not been treated fairly.
Employees who had worked for an employer for at least six months were covered in the original plan. However, under the amended bill, it is expected that the service requirement will be cut to 12 weeks, meaning the qualifying period is less than half the length for Northern Ireland.
Helen Smyth, senior employment relations manager at the Labour Relations Agency in NI, which advises on employment disputes in order to avoid tribunal action, said the body had not yet been asked to arbitrate on disputes over remote working
“It’s really too early to tell how it’s working out, because a lot of employers are still experimenting and trialling hybrid working.”
But she said affected employees, who meet the length-of-service requirement, could also argue that working from home had already worked out if they had been working remotely since the pandemic.
She added: “We were more or less forced to go into the working-from-home situations with the restrictive ‘work from home’ guidance. It really came upon us quite quickly and employees had to transition rapidly into working from home where they could.
“There are organisations that lend themselves to hybrid and remote working more than others, probably by virtue of the nature of their work, but there is no one size fits all, and other factors can affect hybrid working, such as trust and fairness, inclusion and equity and productivity.”
But she added: “I think Covid has more or less reshaped all of our working lives in terms of employees wanting greater autonomy, freedom and choice. I think employees are, certainly more than ever, thinking about what they want from work and what they’re prepared to give in return.”
Remote working could also be requested under the Disability Discrimination Act 1995, which requires employers to make a “reasonable adjustment” for employees with a disability.
Employment solicitor Amy Barr, from Worthingtons Solicitors, said: “The emphasis should be that it’s a right to request remote working rather than a right to remote working itself.”
Amy Barr, Worthingtons Solicitors
She said an employer can refuse the request, but only on the basis of eight grounds set out in statute, including burden of additional costs, difficulty in meeting customer demand, inability to reorganise work, insufficiency of work during the hours the employee wants to work, and detrimental impact on performance.
But she added: “It’s going to be very difficult for clients, where their employees have already been working remotely, to then turn round and say they can no longer do so, if it has not been causing any issues up until now.
“It’s difficult for employers to navigate after the pandemic; you may have had new staff in that period who have only worked remotely. Also, the majority of flexible-working requests are made by women because they bear the brunt of caring responsibilities.
“The workplace has changed. People are trying to recruit and retain people and everybody wants hybrid working. And if they want to keep people, it’s something employers need to consider. And if you have employees on both sides of the border, you should aim to have a consistent policy.”
