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The Right to Request Remote Working Bill 2021

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On 25th January, 2022, the Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD, published details of the Right to Request Remote Working Bill 2021 (the Bill).

The Tánaiste indicated that the draft legislation will not guarantee workers a right to remote working but rather will provide a legal right to request same. An employee will however, if the Bill is enacted, be able to appeal a refusal of remote working by their employer to the Workplace Relations Commission.

Is remote working an employee right under the Bill?

Remote working has become one of the defining features of the pandemic over the last two years and has resulted in significant changes in work for many employees who had previously little experience of working from home. Varadkar, after consultation with the Attorney General, concluded that remote working as a right was not a possibility.

On the mechanism whereby employees may appeal a refusal to work from home,  the Tánaiste noted that the purpose of the appeals process was not to create a huge number of cases in the WRC but to ensure that employers cannot refuse a request out of hand, must respond within a timeframe and to give good reason for such refusal.

The Tánaiste said the Government have expressed a desire to see more remote working, home working and hybrid working not because workers have to but because they choose to.

Remote working in the UK

In the UK, flexible working requests can only be refused for a limited number of defined reasons, including cost, an inability to re-organise work or recruit additional staff, impact on quality or performance, planned structural changes and/or an insufficiency of work during the periods the employee proposes to work. An impression exists in the UK that such an extensive list of exceptions to the right to request to work from home operates to allow employers an unfair ability to refuse.

Can an employer refuse an employee’s request to work remotely?

Yes, on ‘business grounds’. There are 13 grounds for refusal, but the draft legislation leaves open the possibility that there may be other potential grounds for employers to decline remote work requests.

Among the listed reasons are;

  • if the nature of the work does not allow for it to be done remotely;
  • if an employer is unable to reorganise work among existing staff;
  • a potential negative impact on work quality;
  • negative impact on performance;
  • overburden on the employers financial resources;
  • concerns of data protection, business confidentiality or IP;
  • suitability of proposed workspace on health and safety grounds.

The EU Work-life Balance Directive

Along with the proposed Bill, Ireland is also required to implement the EU’s Work-Life Balance Directive, which requires implementation no later than August 2022. The Work-life Balance Directive requires member states to ensure that certain workers have the right to request “flexible working arrangements” which are defined to include not only remote working, but also working schedules and working hours. It appears at this moment the government’s strategy under the proposed Bill only relates to a request to work remotely rather than more extensive working arrangements.

Although draft legislation is far from being finalised it’s important for employers to begin incorporating a structured ‘work from home policy’, if they haven’t already, as the Bill requires all employers to have a written policy on remote work. The policy will set out how remote working requests are managed and the conditions that will apply to remote working generally within the business.

About the Authors: Marc Fitzgibbon, Head of Employment law and Nikita Kelly, Employment Law Solicitor.