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27 January 2021
On 15 January 2021 the government launched the 'Making Remote Work' National Remote Work Strategy, which aims to ensure that remote working "is a permanent feature in the Irish workplace that maximises economic, social and environmental benefits".(1)
Under the strategy, the government promises to:
The most interesting aspects of the strategy from an employer's perspective are the plan to legislate for a right to request remote working and the development of a code of practice on the right to disconnect.
As set out in the strategy, while all employees can, in theory, ask their employer to let them work remotely and there is government guidance available for employees and employers on remote working, there is no legislative framework for how requests for remote working must be handled. The strategy notes that introducing legislation in this area will provide employees with a framework for making such requests and provide clarity to employers on best practice in responding to such requests. The strategy sets out no details of this proposed right, but the government aims to introduce the legislation by the end of September 2021.
What does the right mean for employees?
The right to request remote working does not give employees the right to work remotely or oblige employers to allow employees to work remotely. It is likely to be similar to the right to request a flexible working pattern which applies to all employees who return to work after parental leave. Any guidance on its operation may be similar to the existing guidance on considering requests from employees to move to part-time working, which is set out in Code of Practice on Access to Part-Time Work.
Does this mean that employers must allow remote working?
No, the right does not oblige employers to allow remote working, but they will have to respond to requests and show a clear and objective reason why they are refusing a request. Failing to do so could give rise to claims from employees under equality legislation if they believe that their employer's refusal to allow them to work remotely is discriminatory.
What challenges does more widespread remote working pose?
The COVID-19 pandemic has undoubtedly resulted in many, previously reluctant, sectors embracing remote working at an accelerated pace. However, there are challenges for employees and employers in more permanent remote working. For example, health and safety is a concern for many employers as the same duty to ensure a safe working environment applies when staff are working remotely, and it is acknowledged that it is more difficult for employers to assess and mitigate any risks in this environment. Data security is another concern, particularly if employees access confidential business information while working in a shared remote working hub or at home where other people are also working. Similarly, employees working from home will have increased household costs (eg, broadband, electricity, heating and equipment). The strategy notes that Budget 2022 will involve a review of existing tax arrangements for remote working and assess the merits of future enhancements. This review will hopefully lessen the impact of remote working on household expenditure.
Employers should implement a policy on remote working and include a remote working procedure to provide clarity on the common areas of concern (eg, health and safety, data security, provision of equipment and costs of remote working) and detail the circumstances in which the arrangement can be terminated.
As noted in the strategy, employees have found switching off from work increasingly difficult while working remotely during the COVID-19 pandemic. The right to disconnect has been on the government agenda for some time and it has tasked the Workplace Relations Commission (WRC) with preparing a code of practice in this area for approval by the minister for trade, enterprise and employment in Q1 2021.
While the existing working time and health and safety laws offer some protection against excessive working hours to employees, the current legal framework is inadequate to provide a genuine right to disconnect, particularly where working time thresholds are often not properly monitored or adhered to (for further details please see "Is it time for a specific right to disconnect in Ireland?"). As noted in the strategy, submissions received from stakeholders to the government's Public Consultation on Guidance for Remote Working have been mixed on this topic, particularly with regard to how it might fetter flexibility for employers whose employees operate across different time zones and schedules.
The code of practice aims to provide protection to employees to ensure that they can disconnect from work. Although the code will be guidance, as opposed to binding legislation, it will be admissible as evidence in disputes before the WRC. Therefore, the code may support employees in bringing certain claims arising from excessive working hours (eg, under the Organisation of Working Time Act). The precise scope of the code of practice remains to be seen as the WRC Public Consultation on the Right to Disconnect was open for submissions from stakeholders until 22 January 2020, to inform the drafting of the code.
The strategy's action points can be seen as part of a broader movement towards embracing different modes of working and encouraging greater work-life balance. More developments are expected in this area in the coming years, particularly as Ireland has yet to implement the EU Work-Life Balance Directive (2019/1158/EU). This directive, which must be implemented by all EU member states by August 2022, and its accompanying policy measures aim to ensure that EU member states:
For further information on this topic please contact Síobhra Rush or Audrey Whyte at Lewis Silkin Ireland by telephone (+01 566 9874) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
(1) The National Remote Work Strategy is available here.
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