Brendan Kirwan SC & Katherine McVeigh BL
27 Jan 2022
The global pandemic that started in early 2020 massively disrupted workplaces around the world. As a result, many offices turned into ghost buildings overnight and many of us learned to work remotely at home.
Now that public health guidelines allow us to physically return to work, active consideration is being given to allow many people to continue to work, at least in part, on a remote basis.
Although the number of employees whose work is such that remote working is a real, practical opportunity may well be smaller than commonly perceived, it is certainly a laudable aim to, as the Tánaiste put it when publishing the details, “change the norm and learn what we can from the pandemic.”
Putting remote working on a statutory footing seems, at a glance, to be a positive step. As with many pieces of legislation, however, best intentions frequently run into practical realities. There has already been considerable comment in the media on the thirteen so-called “business grounds” on which an employer may rely as a basis for declining a request for remote working. This short article identifies eight grounds, both practical and legal, arising from the proposed law which it is believed give rise to the need for further thought, clarification and guidance in this important and emerging area.
Before looking at those grounds, and by way of overarching summary, it is intended through the proposed law to require employers to have a remote working policy; to allow employees make a request to work remotely; to have a consultation arising from that request; and to provide a reason in writing where such a request is refused. Provision is also made for the Workplace Relations Commission to grant redress if certain specific breaches of the law occur.
Turning to the specific grounds which might benefit from further thought and clarification,
1. The Employer
Just who is an employer? Head 2 of the proposed law refers to a contract of employment and, somewhat unusually relative to how an “employer” is typically defined in other employment legislation, a liability to pay wages. Where this leaves less typical employment relationships such as agency workers, temps and so on in the context, specifically, of remote working, is uncertain.
2. Broadening Access
An accompanying Regulatory Impact Assessment indicates that the proposed law is designed to increase participation in the labour market. This includes people with disabilities. How this might be achieved in the short term given the requirement at Head 6 to have six months’ continuous service with an employer prior to submitting a request for remote work is unclear.
The proposed law’s interaction with existing legislation is also unclear. For example, the Employment Equality Act addresses access to employment, something that is absent from the proposed law. Indeed, a minimum service requirement effectively denies access to remote working for a period of time. A twelve month break between requests is also provided for. The merits of protecting an employer from repeated (and potentially frivolous) requests appears to trump an employee’s personal circumstances genuinely changing such that a move to remote working may become a pressing requirement for them.
3. A Mandatory Assessment
An employee must provide at least five types of detail to support a request to work remotely, these being set out in Head 8. One of these, to be carried out by the employee, is a “self-assessment” of the proposed remote working location, including an assessment of “data protection and confidentiality”. Lawyers who profess to know the law in these areas apart, this seems to impose quite a burden on an employee who has to inform themselves of these relatively niche areas of the law before undertaking any assessment. How this self-assessment sits with the idea that an employer will, in the normal course, bear responsibility for a data breach concerning their organisation is unclear. Speaking of sitting, how an employee is supposed to assess the “ergonomic suitability” of their proposed workspace is unexplained.
4. Withdrawing a Request
An employer may deem a request withdrawn if “additional documentation” is sought and not provided. Such documentation is undefined. Must it be directly related to the request? What if an employee cannot access such documents? Could a cynical employer use this provision to essentially deem a request withdrawn?
5. Mandatory Consultation
Despite the obligation contained in both Heads 10 and 11 for employers to have mandatory consultations with employees, there is no definition of what such a consultation involves. Is it a face to face meeting? Is it through a written form? In areas such as disability, although prudent for an employer to consult with an employee, there is no obligation on an employer to do so. Why remote working attracts this particular mandatory requirement is unclear.
6. Thirteen Business Grounds
Head 12 provides that a request for remote working may be declined on “business grounds” and, it seems, no more than that. However, it also gives thirteen examples of such “business grounds” which, if minded to, an employer may citeas a reason for declining a request. What are some of the practical implications of citing a specific example of a business ground? An employer can refuse a request if there are “concerns for the commute” in relation to the distance between the remote working location and the employer’s location. So an employer could say that Carnagh East in Roscommon (the geographical centre of Ireland) is too far from Dublin and in saying that, satisfy the requirements of the proposed law. Yet that seems to fly in the face of the National Remote Work Strategy, which aims to use remote work to “relieve accommodation pressures in cities” and to “facilitate workers to move to less congested urban and rural locations”. An employer can also decline a request if the employee is the subject of an ongoing or recently concluded disciplinary process. Why? Should there not be a distinction between an employee who has been fully exonerated in such a process and an employee who may well be put on a warning and require closer, in-person, monitoring?
7. A Mandatory Policy
A somewhat unique, and potentially onerous for smaller employers, mandatory requirement is that set out at Head 14. It introduces a legal requirement for every employer to establish and maintain a Remote Working Policy. The Policy must be communicated to all staff every year and to any new employees upon commencement of employment. Quite apart from the additional burden imposed on small businesses, what of frontline healthcare workers, lorry drivers and so on? They are unlikely to request the ability to work remotely, yet it would appear that their employers must have a prescribed Policy.
8. Redress in the Workplace Relations Commission
It is intended that the Workplace Relations Commission can award up to four weeks’ pay in respect of a complaint relating to contravention of the proposed law. However, such an award can only be made, it appears, in respect of three procedural breaches specified under Head 13. That being so, it would seem that there is no redress if an employer, for example, fails to introduce the mandatory remote working policy or fails to consult with an employee on a remote working request, both of which it is intended will be mandatory requirements. Again, it is unclear why.
Furthermore, the proposed law does not include redress for penalisation where employees are penalised due to their request for remote work. This includes the absence of protection in respect of dismissal. Yet Head 15 provides that an employee may elect between this law and the Unfair Dismissals legislation when claiming that they have been penalised. At a minimum, that seems to be somewhat inconsistent.
Encouraging remote working is a laudable aim. However, looking at the proposed law, the way in which it is proposed to achieve those aims does, as is apparent from the issues identified, raise a number of practical issues. Indeed, the tangled web of legislation governing employment means that a right to request remote working cannot be viewed in isolation; its intersection with, amongst other things, the Code of Practice on the Right to Disconnect, the Terms of Employment (Information) Act, the Safety, Health and Welfare at Work Act and the Workplace Relations Act will need to be thought through fully.
More fundamentally, the proposed law does not provide a right to work remotely. Rather, it puts on a statutory footing the ability to make a request to work remotely and to compel an employee to respond to that request. That being so, it is arguable that what is proposed would introduce a level of complexity and additional administration to what is already an existing informal process.
By identifying the various issues set out in this piece now, it is hoped that they will feed into a wider discussion and consideration of what it is that the proposed law will achieve and how it will really benefit both employees and their employers.
This article was extracted from the Bar of Ireland's viewpoints.“The views expressed above are the author’s own and do not reflect the views of the Association”