The Right to Request Remote Working Bill 2022

On 25 January 2022, the Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD, published the Draft Scheme on the Right to Request Remote Working Bill 2022 (the “Draft Scheme”). The Draft Scheme was developed following consultation with employer groups, employee representative groups and the public, as part of the Government’s National Remote Working Strategy, to make remote working a permanent feature of the Irish workplace. 

The Draft Scheme does not grant employees the right to work remotely. Instead, it introduces a legal framework which establishes the right to request to work remotely (from home or otherwise) and of employers to approve or reject such requests. 

Pursuant to the terms of the Draft Scheme, it will be mandatory for all employers to put a written Remote Working Policy in place and failure to do so will be a criminal offence. Employers will also be required to bring the policy to the attention of (a) new employees on commencement of employment, and (b) employees generally, at least annually and otherwise, following any amendment.

How can an employee make a remote working request under the Draft Scheme?

An employee must make a request in writing detailing their proposal to their employer. The proposal should include the following details:-

a. proposed remote working location;

b. proposed start date for remote working arrangement;

c. proposed number, and timing, of working days to be worked remotely;

d. if the employee made a previous request to the employer for remote working and the date of the most recent request; 

e. a self-assessment of the suitability of the proposed remote working locations regarding specific requirements for carrying out the job such as data protection and confidentiality, minimum levels of internet connectivity, ergonomic suitability of the proposed workspace and any equipment and furniture requirements.   

The employer may request written evidence relating to the request and meet with the employee to discuss the request. If the employee fails to comply with these requirements, this may result in the request being deemed to be withdrawn.

Are there are limitations on employees making such requests?

An employee is required to have completed at least 26 weeks continuous service prior to submitting a remote working request. The Draft Scheme does not however, prevent the employer making such an offer to the employee, should they wish to do so, at any stage of the employee’s service. 

If an employee has had a request for remote working refused, she/he cannot submit a further request to remote work, in relation to the same or similar role, for a period of twelve months from the date of the final decision on the previous request. 

Is an employer obliged to approve a remote working request?

No. The employer may wholly or partially, approve or refuse a request. Such a response must be provided to the employee no later than 12 weeks from the date of receipt of the request, and only after having consulted with the employee and/or their union representative. 

If the employer does not agree with the request as received and proposes an alternative remote working arrangement, the employee may either accept or reject that counter offer. If she/he rejects the counter proposal, she/he is required to set out their reasons for doing so in writing within a period of one month from the date of the counter offer.

What are the reasons for the employer validly refusing a request?

An employer may decline a request where it is satisfied the proposal is not suitable on business grounds. These include:

a. The nature of the work not allowing for the work to be done remotely 

b. Cannot reorganise work among existing staff

c. Potential Negative impact on quality of business product or service

d. Potential Negative impact on performance of employee or other employees

e. Burden of Additional Costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business

f. Concerns for the protection of business confidentiality or intellectual property

g. Concerns for the suitability of the proposed workspace on health and safety grounds

h. Concerns for the suitability of the proposed workspace on data protection grounds

i. Concerns for the internet connectivity of the proposed remote working location

j. Concerns for the commute between the proposed remote working location and employer’s onsite location

k. The proposed remote working arrangement conflicts with the provisions of an applicable collective agreement 

l. Planned structural changes would render any of (a) to (k) applicable

m. Employee is the subject of ongoing or recently concluded formal disciplinary process

The above list is non-exhaustive and an employer may decide that there are other business reasons to refuse the request. 

What can an employee do if their remote working request has been refused?

The Draft Scheme envisages that employers will grant an internal appeal option as an employee can only make a complaint to the Workplace Relations Commission (the “WRC”) two weeks after the commencement of the internal appeal process. 

The grounds on which an employee can refer a complaint to the WRC are limited to where the employer has failed to:- 

a. give the employee a decision in response to their remote working request,

b. provide notice of the grounds for refusing a request, or

c. comply with requirements relating to the withdrawal of a request. 

Under the Draft Scheme, an employee cannot bring a complaint to the WRC simply on the basis that she/he is not satisfied with the employer’s decision. The WRC can award compensation of up to four week’s pay and make decisions to require the employer to comply with the Draft Scheme. 

What happens if an employee’s remote working application is approved?

Any remote working arrangement should be confirmed in writing. The format of the arrangement must include:-

a. Exact details of the proposed remote working arrangement 

b. Proposed Start Date for Arrangement 

c. Where approval is for a trial or temporary period, the proposed end date 

d. Where is it is to be for an indefinite duration, details of any ongoing review requirement

e. Details of any equipment to be provided by the employer or allowances payable to the employee to cover costs associated with remote working

When can we expect legislation to be introduced?

The Tánaiste stated in a press conference on Wednesday, that it is intended to have the Bill legislated “before the summer recess and certainly in place this year.”

Is there anything else to note in relation to the Draft Scheme?

• The Draft Scheme makes provision for the protection of employees from penalisation by his/her employer which arises as a result of the employee's remote working request.

• A Code of Practice is also due to be published by the WRC containing guidance for developing the remote working policy.

• Employers must retain records of any requests to show compliance with the Draft Scheme. Such records must be retained for at least 3 years. It is an offence to fail to comply with this requirement under the Draft Scheme.

Key Takeaways for Employers

While the Draft Scheme is still very much in its early stages, employers are encouraged to take this opportunity to assess the impact that this new right will have on its business in the long-term. This includes assessing:

(i) The type of remote working policy employers envisage for their workforce. For example, will it include a hybrid model or a fully remote model? If a hybrid model is adopted, how many days will staff be required to attend the office, and how will this be determined? A staff survey may provide some relevant feedback for this process, whilst also securing workforce buy-in and loyalty. 

(ii) The business reasons in favour or against remote working. While the Draft Scheme identifies a number of general factors to consider when refusing a request, employers will need to tailor this to suit the needs of their business and workforce. 

(iii) Those roles which would best suit a remote/hybrid working model and those which would not. Prudent employers will appreciate the impact that a refusal to a request for remote work may have in terms of attracting and retaining talent. As such, this factor in particular should be considered carefully.

(iv) Any changes to workplace practices that may be required to transition to remote working in the long-term. While some employers may have adopted such changes, the introduction of the Draft Scheme provides a chance for employers to update and improve such practices. For example, ensuring confidentiality is maintained, updating IT systems, and considering what supports it may provide to ensure a safe home office space when employees are working remotely. 

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For further information on the within, or if you require assistance drafting a remote working policy for your business, please contact Lorraine Smyth and Sheila Spokes from the ByrneWallace LLP Employment Law team, or your usual ByrneWallace LLP contact.