Remote Working set to be a Permanent Feature

by Joanne Hyde, Partner and Head of Employment Law, & Emma Lavin, Associate in Employment Law, Eversheds Sutherland Ireland

On Friday, 15 January 2021, Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD published a National Remote Work Strategy (the “Strategy”) with the aim of ensuring that remote working becomes a permanent feature in the Irish workplace.

The Strategy will create a legal landscape for remote working through the implementation of a statutory framework for requests for remote working and a code of practice on the right to disconnect.

Details of the Strategy are outlined in a document entitled “Making Remote Work” which can be found here (the “Strategy Document”).

Basis for the Strategy

The Strategy is driven by both an anticipated increase in the demand for remote working as a consequence of the Covid-19 pandemic and an acknowledgment of the benefits which can be derived from same.

The Strategy Document references research carried out by the NUI Galway Whitaker Institute and Western Development Commission in October 2020 which found that 94% of participants would like to continue to work remotely after the Covid-19 crisis subsides.

The Government has acknowledged that public policy has an important role to play in making remote working a permanent feature of the Irish workplace.

The Strategy Document outlines the following benefits which can be derived from remote working:

• increased participation in the labour market and attraction and retention of talent;
• the enablement of balanced regional development and alleviation of accommodation pressures in cities;
• the improvement of work/life balance and child and family wellbeing; and
• the reduction of the amount of time spent commuting and the reduction of transport-related carbon emissions.

The Strategy is, in part, also driven by the EU Work-Life Balance Directive which is due to be implemented in Ireland by 1 August 2022. The Work-Life Balance Directive requires Member States to give parents and carers the right to request flexible working – this is broadly defined and could include changes to work times, job sharing options etc. as well as remote working.

The Right to Request Remote Work

The Strategy Document acknowledges that employees in Ireland can currently request the right to remote work from their employers. Indeed, many do.

There is, however, no legal framework around which such a request can be made. Unlike other EU countries, Ireland currently has no statutory mechanism by which employees can request any form of flexible working, save for as may arise in the provision of reasonable accommodation to employees with disabilities.

It is proposed that legislation will be introduced to provide a framework around which remote working requests could be based. It is envisaged that the legislation will provide clarity to employers on best practice on dealing with such requests.

Reasoned Response

The Strategy Document does not provide any detail on the statutory process for making a remote working application. However, Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD, in a video released on 16 January 2021, indicated that an employer will need to provide a “reasoned response” to a remote working request and that there will be a facility to “challenge the decision” if the decision goes against the employee’s wishes.

Definition of Remote Working

In addition, the Strategy document states that the Strategy has adopted the following definition of “telework” contained in the 2002 European Framework Agreement in respect of remote working:

“A form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.”

The Strategy Document also defines remote work as an arrangement where work is “fully or partly” carried out at an alternative worksite other than the default place of work.

If these definitions are incorporated into the draft legislation, it is likely that employees will be able to apply for either full-time remote working or a hybrid model of working.

The Department of Enterprise, Trade and Employment has been tasked with legislating for remote working requests by Q3, 2021.

The Right to Disconnect

The Strategy Document outlines that the right to disconnect is a worker’s right to be able to disengage with work and refrain from engaging in work-related communications such as emails or other messages, during non-work hours and holidays.

Employees currently have protections under the Organisation of Working Time Act 1997-2015 (the “OWTA”). The OWTA provides that employees have the right to work breaks, daily and weekly rest periods, annual leave and a cap of the number of hours they can work per week, for example.

However, despite this, the Strategy Document states that it is clear that, during Covid-19, employees have faced difficulties in switching off from work.

The Government has asked the Workplace Relations Commission to draw up a code of practice on the right to disconnect (the “Code”) in order to protect employees from overwork.

If the Code is made under the OWTA, it will not be legally binding on employers. A failure to comply with the Code, in such circumstances, will not render an employer liable to proceedings. The Code would, however, be admissible in evidence in claims which involve issues covered by Code eg it may be presented as evidence in a claim regarding rest breaks.

The Code is expected to be introduced in the first quarter of 2021.

Considerations for Employers

Employers will need to give careful consideration to how long-term remote working will fit into their organisations.

The statutory framework for applying for remote working will, no doubt, result in a high amount of applications. Employers will need to have fair processes in place for dealing with such requests. Failure to do so could result in employees raising grievances or other claims.

Employers will also need to be mindful of the possible employment equality considerations which may arise in the context of long-term remote working. The Strategy Document envisages a high uptake of remote working amongst individuals who have disabilities and caring responsibilities and older workers. Each of these groups are protected under the Employment Equality Acts 1998-2015 on the grounds of disability, family status, age and possibly gender. Employers will need to ensure that such groups are not directly or indirectly discriminated against, in particular in relation to access to promotion and training.