Back in February, the Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar referred the General Scheme of the Right to Request Remote Working Bill to the Joint Committee on Enterprise, Trade and Employment for pre-legislative scrutiny. The fruits of the Committee’s labour can be seen in its 54 page Report, published on 7th July which it sets out a series of recommendations it hopes the Government will take on board before the legislation is finally signed into law. Here Brian Gill, Partner at Callan Tansey Solicitors examines the recommendations made by that committee.
Recommendations on the Right to Request Remote Working
The Joint Committee on Enterprise, Trade and Employment recommendations include:
- Reducing the minimum service period before an employee can make a request to work remotely from 26 weeks to 12 weeks or less
- Reducing the bureaucracy associated with the drafting of policies related to remote working and providing SMEs with supports in this regard
- Addressing the anomaly whereby it is not an offence to not have a policy on remote working but it is an offence for an employer not to inform their employees of their policy
- Enshrining in law the principles underpinning a reasonable Code of Practice for the operation of remote working and allowing the WRC to design how they should be applied in different workplace situations
- Introducing legislation which would mandate the WRC to draw up a Code of practice upon which the employer’s remote working policies would be based
- Considering a right of appeal against the employer’s policy in circumstances where there are a high level of refusals of reasonable requests by that employer.
- Introducing tighter grounds in primary legislation so that unreasonable refusals should be open to challenge
- Aligning this legislation with the General Scheme of a Work Life Balance and Miscellaneous Provisions Bill 2022
- Retaining the provision giving the employer 12 weeks to respond to a request for remote worker in circumstances where the employer is developing its remote working policy for the first time.
- Reducing the amount of time that the employer must respond to the first request.
- Revisiting the wording of and strengthening objectivity in grounds A, B, C, D, G, H, I, J, K and M, set out below, for declining a request for remote working
Most Significant Recommendation on the Right to Remote Working
This recommendation , which looks to tighten up the grounds upon which a request can be declined, is arguably the most significant recommendation and the one that is likely to have the most far-reaching impact in practice.
The current grounds are as follows:
(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 on-site 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
In its Report the Committee members acknowledged that much of the commentary surrounding the Bill had not been positive. Much of this negative commentary surrounded the aforesaid grounds of refusal which the Committee believes were “cumbersome” and “require change”. As things stand, the concern is that employers will all too easily find a way of being able to rely on one of the above grounds employee representative groups will want to see that balance recalibrated before the Bill becomes law. The Government’s final position is eagerly awaited.
Brian Gill, Partner, is Head of Commercial Litigation and Employment Law at Callan Tansey Solicitors. If you have any questions about the Right to Remote working and how it may impact you or your business you can contact Brian at BGill@callantansey.ie