The Irish government recently published a bill introducing a legal framework establishing a right to request remote working and the management of such requests by employers.
The draft scheme of the Right to Request Remote Work Bill 2022 (the “Draft Bill”) will need to be scrutinized and amended as needed by the Irish parliament before it can be enacted. It is likely to be enacted before Easter and enter into effect before summer 2022.
The Draft Bill was introduced following the Irish government’s commitment to such legislation in the Remote Work Strategy published in January 2021 (Lockton Global Benefits Compliance alert here). The Draft Bill has been developed following public consultation with employers’ groups and employees’ representatives.
Remote work policy
All employers, regardless of their size or sector, will be required to establish and maintain a remote working policy in writing. The policy must be communicated to all employees and newly hired employees. Failure to comply with this obligation will be a criminal offense and employers may be liable to a fine of EUR 2,500.
The policy must include, among other things, details on how remote working requests will be managed and the timeframe for the employer to respond to such requests.
It is still unclear whether the policy should be established following consultation with employees’ representatives or trade unions.
Request for remote work
All employees with a minimum of 26 weeks of continuous service will be entitled to submit a request for remote work. Employees have the right to make only one request in any 12-month period. The request must be established in writing and include, among other things, the following:
- Proposed remote working location and start date.
- Proposed number of remote days.
- Date of the most recent previous remote work request (if any).
- A self-assessment of the suitability of the proposed remote working location, including assessments on data protection, confidentiality, internet connectivity and ergonomic suitability of the remote workplace and any equipment or furniture requirements. The Draft Bill doesn’t provide clarity on how such assessment should be performed.
The employer may request in writing:
- Additional evidence or documentation relating to the request.
- A meeting with the employee to discuss the request.
If an employee fails to comply with the employer’s request to meet or to provide further evidence within a 12-week period, the employee’s remote work request will be deemed withdrawn.
Employers may require their employees to use a specific template or form to make the request so long as such requirement is stated in the employer’s remote work policy.
The employer may approve (fully or partially) or refuse an employee’s remote work request.
Employers are required to:
- Consult with the employee who submitted a remote work request and/or their union representative.
- Respond to the employee who submitted a remote work request within 12 weeks from the date the request was received.
If the employer approves the request, a written confirmation must be given to the employee including the agreed details of the remote working arrangement (start date, duration, etc.)
Employers may propose, in writing, an alternative remote working arrangement that the employee may accept or reject. Employees who reject the employer’s counter-proposal will be required to explain, in writing, the reasons for such rejection within a period of one month from the date of the counter-proposal.
Employers may refuse a remote work request “on business grounds.” The Draft Bill includes a non-exhaustive list of examples of business grounds such as:
- The nature of the work which may not be performed remotely.
- The potential negative impact on employee performance or quality of products or services.
- The burden of additional cost.
- Concerns about the business confidentiality, data protection or intellectual property.
- Concerns about the proposed workspace health and safety or internet connectivity.
- If an employee is the subject of an ongoing or recently concluded formal disciplinary process.
- The employer’s current or planned structural changes.
Employees who have exercised their right to request remote work may not be penalized by their employer. Penalizations include suspension, layoff, dismissal, demotion or unfavorable changes to their working conditions.
Appeals and complaints to the Workplace Relation Commission
An employee can appeal internally by following the employer’s appeal mechanism, which should be detailed within the Remote Working Policy, if the employer fails to give a decision within 12 weeks or doesn’t provide grounds for refusal. Additional guidelines on internal appeals are expected to be featured in the final legislation.
An employee must first follow their employer’s internal appeal mechanism before submitting a complaint to the Workplace Relation Commission (WRC). Employees may only submit a complaint to the WRC concerning procedural issues – complaints on the substance of the employer’s decision to decline a remote work request are excluded.
The WRC may award up to four weeks’ remuneration in compensation to an employee in response to any violation by their employer. Employees may also appeal the WRC’s decision to the Labor court.
Code of Practice
The Draft Bill provides that the Minister for Enterprise, Trade and Employment may require the WRC to publish a Code of Practice on the right to request remote working. The Code of Practice would be intended to provide guidance on the implementation of the upcoming legislation.
The Draft Bill is still in its very early stages. There may be significant changes before it becomes law as the terms of the Draft Bill are still subject to discussions and comments until the final text is enacted.