by Jennifer Bassett, Associate in the Walkers’ Global Employment Group
The Department of Trade, Enterprise and Employment (“Department“) recently published a strategy paper outlining its vision for remote working entitled “Making Remote Work – National Remote Work Strategy” (“Remote Working Strategy“). The Remote Working Strategy confirms the Government’s intention to legislate for employees to have a right to request remote working.
While recognising the many benefits of remote working where appropriate, the Remote Working Strategy outlines in some detail the negative consequences of remote working, including its potential impact on productivity, employee isolation and the reduced ability for employees to switch off. The Department appears to acknowledge that remote working will not be feasible or positive in all circumstances.
The Remote Working Strategy addresses the impact of remote working on employer health and safety obligations and states that the EU is reviewing its health and safety at work legislation in light of the increased desire and necessity for remote working. It is therefore likely that changes will be made to Irish health and safety law in due course. Employers should comply with the Health and Safety Authority’s Guidance on Working from Home for employers and employees until further guidance and/or legislation is published.
Right to Request Remote Working
It is important to note that the upcoming legislation will provide for a right to request remote work only. Employees will not automatically be granted a right to work remotely in the new legislation.
Employers should consider any requests for remote working by employees and, if refusing the employee’s request, provide an objective and reasoned response on why the employee’s request cannot be facilitated at that time. Legislation will require this response to be given in writing so employers should prepare to be transparent about the reasons for any refusal to allow remote working. A remote working policy which sets out a procedure for requesting remote work, including the criteria that will be considered by an employer in deciding whether to grant the request and an internal appeals procedure, will be helpful in justifying the employer’s decision if challenged.
Right to Request Flexible Working
Separately, the EU Directive on work-life balance for parents and carers (“Directive“) provides the right to request flexible working arrangements for carers and working parents of children up to eight years old.
Ireland is obliged to introduce legislation providing for this right by 1 August 2022.
The Directive confers on certain employees the right to request flexible working arrangements, but no automatic right to be granted flexible working arrangements. Flexible working arrangements are much broader than remote working and include arrangements such as different working hours, a reduction in working hours or job sharing. It is clear that in order to comply with its obligations under the Directive, Ireland will need to introduce further legislation than the currently proposed right to request remote working.
Right to Disconnect
The Remote Working Strategy also states that the Department intends to introduce a code of practice on the right to disconnect in the first quarter of 2021. The proposed code of practice will set out best practice and approaches to employee disengagement outside normal working hours.
In France, employers with more than 50 employees are obliged to develop collective agreements with their employees which deal with employees’ rights to not send or receive emails outside core working hours.
Ireland’s Organisation of Working Time Act, 1997 already provides for mandatory rest breaks and rest periods, for instance employees have a right to a daily rest period of eleven hours and a weekly rest period of 24 hours (or 48 hours once every two weeks).
Submissions from relevant stakeholders will be considered before any changes are introduced. Trade unions are seeking a prohibition on any work outside normal working hours; while many employer bodies argue that the current lack of working time flexibility is no longer fit for purpose. Whether Ireland aligns itself more closely to Boston than Berlin on this issue remains to be seen.
If a strict approach to the right to disconnect is established in the proposed code of practice, this will be difficult to reconcile with the upcoming right to request flexible working arrangements under the Directive. Furthermore, such an approach may disproportionately affect women and carers which would undermine the objectives pursued by both the Directive and the Remote Working Strategy.
Employers will need to adopt a flexible and sophisticated approach to balance the competing rights of employees which are soon to be conferred upon them. As with all new rights introduced through employment law, there is likely to be teething problems while employers and employees adapt to a rapidly changing working environment.
Employers should ensure their flexible working, working time and performance management policies are reviewed in anticipation of the changes ahead.
The author wishes to thank Susan Battye for her contribution to this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
About the author
Jennifer has experience assisting in the resolution of complex employment disputes including senior executive exits, employment injunctions, unfair dismissal claims, constructive dismissal claims, equality/discrimination claims, bullying and harassment claims, protected disclosure claims and trade disputes.
Jennifer has experience providing non-contentious advice to large domestic and international employers including in relation to restructuring the workforce, drafting senior executive employment contracts and policies for employee handbooks and assisting in the provision of employment law advices in commercial transactions.