Remote Working, Is there a Legal Right to it?

by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.

Many employees have now become accustomed to remote working in the Covid-19 pandemic. For some, it may seem that there is no going back to the old days!

The consensus is that the massive decamp from traditional workplaces to home has been quite successful. A Willis Towers Watson report in the UK from May 2020 states that 85% of organisations felt they had the tools needed to work remotely and productively for an extended period. Closer to home, the NUI Galway Covid-19 Remote Working National Employee Survey suggested that almost two-thirds of employees believed they had better or similar productivity working remotely and over 80% would like to keep working from home. Individual employers have also joined the fray with employers like Twitter allowing their employees to work from home “forever” and, anecdotally we have heard of many other employers who will voluntarily facilitate an extended period of home working.

The Irish Government has also encouraged employers to facilitate employees to continue to work remotely where possible to do so, at least until Phase 5 of the reopening in August 2020. Additionally, the Roadmap for Reopening Society & Business suggests that the Government will bring forward initiatives to promote remote working.

Nevertheless, some organisations will simply not be amenable to longer-term home working. Sectors and industries will naturally differ on how practicable widespread home working can be and some employers will undoubtedly prefer a return to more familiar working models.

Looking ahead, it is reasonable to anticipate tension between some employers and employees and we can expect stand-offs with some employees resisting a return to the traditional workplace on either health and safety grounds or due to childcare constraints. Other employees may simply prefer working from home, in light of a good recent working experience and may resist calls to return.

These are unprecedented and fluid times. As such, employers would be well advised to consult extensively and to tread cautiously in all such situations, seeking to reach an accommodation if possible. Flexibility and reasonableness is expected from employees as well as their employers. However, any disciplinary action against employees who refuse to return to work, particularly due to health or childcare concerns, should be a last resort. Robust disciplinary actions against such employees are unlikely to be sympathetically considered in any subsequent Workplace Relations Commissions (WRC) cases. Employers are also increasingly expected to have a Remote Working Policy.

Nevertheless, there is no absolute or general right to remote working or indeed any type of flexible arrangement beyond contracted terms. Legal guidance for employers and employees alike is limited. The Code of Practice on Access to Part-Time Work from 2006 is now well outdated.

Prior to the pandemic in December 2019 and probably mindful of the EU Work-life Balance Directive 2019, the Government had launched a consultation on Flexible Working under Future Jobs Ireland. This was with a view to ultimately issuing a national Flexible Working Policy. While it has been temporarily overtaken by events, it is something worth returning to. With roadmaps being the current buzzword, a good general framework for employers and employees to incorporate workplace safety and childcare issues as well as other relevant consideration would be warmly welcomed.

When the dust settles somewhat and the HR fallout from covid-19 becomes clearer, the WRC and Labour Court may be very busy places. We are likely to see many claims filed by unhappy employees for various reasons. One such category may be those in dispute with their employer over refusals to allow continued remote working.

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.