Update: The Code of Practice for Employers and Employees on the Right to Disconnect was recently published by the Workplace Relations Commission and entered into effect on 1 April 2021. The new code applies to all employees regardless of their working pattern and location. The right to disconnect is defined as an employee’s right to not engage in work-related communications or events outside normal working hours. Employees and employers should therefore be clear about what constitutes “normal working hours” within the maximum weekly working hours limit of 48 hours as set by the Organization of Working Time Act, 1997.
On 15 January 2021, the Irish government published a work from home guidance known as “Making Remote Work – National Remote Working Strategy” (the “Strategy”), which sets out the government’s plan to introduce an action plan to make remote work a regulated permanent option post-pandemic. Under the Strategy, the government plan includes the introduction of a right to disconnect, a right to work from home and a review of the tax arrangements for remote working.
The Strategy was developed by an Interdepartmental Group run by the Department of Enterprise, Trade, and Employment, and an implementation group will be formed to monitor the progress of the actions that the government has promised to take. The government’s plan is expected to be implemented in stages throughout 2021.
The global pandemic has pushed a large number of people to work from home and as both companies and individual workers are seeing benefits to the situation, it is anticipated that large numbers will continue the practice post-pandemic. As a result, the Irish government is seeking to apply a structure around the practice which acknowledges its benefits, including:
- For the employer: employee retention, cost-efficiencies, increased diversity with greater participation of people with disabilities in the workplace
- For the employee: work/life balance and family well-being, reducing commuting time
- For the environment: reduced transport-related carbon emission and air pollution
The Strategy also acknowledges the potential negative impact of working from home, such as feelings of isolation. The Strategy intends to reap the many benefits of telecommuting by mitigating the negative effects through a comprehensive legal framework.
The Irish government intends to regulate the following aspects of remote work.
The right to request remote working
In response to the current lack of a legal framework, new legislation creating a right to request remote working will be introduced by September 2021 to help employers deal with such requests. The Strategy has merely framed the issue and additional detail will be forthcoming. However, it is likely to include that employers will be required to give specific and objective reasons should they choose to refuse a work-from-home request. If a refusal is unreasonable, employees would be able to appeal the employer’s decision to the Workplace Relations Commission (WRC).
The right to disconnect from work
The Organization of Working Time Act, 1997, sets the maximum weekly working hours to 48 hours. However, since remote work makes it difficult for employers to monitor employees’ working hours, the government will introduce a right to disconnect which will be outlined in a code of practice (the “code”) by the end of 2021. The new code, which will be drafted by the WRC and approved by the Minister for Enterprise, Trade, and Employment, will set out best practices to ensure remote employees effectively disconnect from work after completing their daily working hours. The right to disconnect would include the right to not check phone calls and emails at the end of the working day. Since the code is only a guidance and not a law, it will be considered by the WRC when an employee brings a claim related to an inability to disconnect at the end of the working day.
Tax treatment of remote working
Under the Strategy, the government plans to review the tax treatment of remote working in the 2022 budget law.
The government also plans to invest in remote work hubs located close to childcare facilities and work on a national broadband plan. In addition, a new law will be introduced to mandate remote work 20% of the working time for public sector employees.
Employers should identify the roles that cannot be performed remotely in anticipation of potential remote working requests. Employers will need to develop policies, or revise current policies, with regards to remote work requests and the right to disconnect to ensure more transparency and to avoid potential claims. Employers will further need to develop infrastructure and trainings to compliantly fulfill their obligations.
Employers should continue to monitor developments and involve local counsel as necessary to develop compliant policies and procedures.