The Cabinet has signed off on the eagerly awaited Bill in relation to remote working. Tánaiste and Minster for Enterprise, Trade & Employment. Leo Varadkar yesterday published the Draft Scheme of the Right to Request Remote Working Bill 2021. Here Brian Gill, Partner and Head of Commercial Litigation at Callan Tansey Solicitors, outlines the key elements of that Bill.
As the pandemic, hopefully draws to a close and we can begin to see clear road ahead of us, employers, employees and their representative bodies will want to get to grips with the detail on a piece of legislation that is designed to reflect the new world we live and work in. The cornerstone of the new law is a right for the employee to request remote working.
The Government believes this strikes a fair balance between the competing interests of employers and employee. For many on the employee side it does not go far enough. The soundings from Government were that it felt affording a right to remote working would be a step too far and be too prescriptive.
The main features of the new Right to Request Remote Working Bill are as follows:
WHAT IS “REMOTE WORKING”
Remote Working is defined as “the practice of an employee carrying out their contractual work duties at their residence, or in some other location that is not their employer’s place of business” (e.g. remote working hubs).
VALIDITY OF EXISTING ARRANGMENTS
Existing arrangements that render remote working impossible will be deemed null and void.
MINIMUM PERIOD OF EMPLOYMENT FOR APPLICANTS
Employees must have completed 6 months service with their employer to become entitled to the right to request remote working from their employer.
PROHBITION ON CONSTANT REQUESTS FOR REMOTE WORKING
There will be a freeze period of 12 months between requests, commencing on the date of the completion of the initial request process, which may have included an appeal. The idea behind this is to prevent the submission of constant requests
REQUIREMENTS FOR A VALID REQUEST FOR REMOTE WORKING
The request to work remotely must
- Be in writing
- Include the proposed remote working location
- Set out the proposed start date
- Identify the no. and timing of working days that are to be worked remotely
- Confirm if (a) previous request(s) were made and if so, the date(s) thereof.
- A self-assessment of the suitability of the proposed working arrangement locations by reference to the following
– data protection and confidentiality perspective;
– Internet connectivity
– ergonomics – including the proposed workspace and equipment.
Employers can draw up the Precedent Self-Assessment Forms and where they do this should be reflected in their Remote Working Policy.
EMPLOYER’S ENTITLEMENT TO LOOK FOR ADDITIONAL INFORMATION
Upon receipt of a formal request, the Employer can seek further particulars from the Employee and require the employee to meet with them to discuss the request. If the Employer makes these requests in writing the Employee must comply.
WITHDRAWAL OF A REQUEST FOR REMOTE WORKING
• An employee can withdraw their request but must do so in writing.
• If the employee fails to furnish additional information sought by the Employer, the Employer may deem the request to be withdrawn.
• Receipt of the withdrawal of the request must be recognised in writing by the Employer.
TIMEFRAME FOR CONSIDERATION OF THE REQUEST FOR REMOTE WORKING
The Employer will have a maximum of 12 weeks to consider the request.
EMPLOYER’S OBLIGATION FOLLOWING RECEIPT OF A REQUEST
Once the Employer has agreed to the request, or is able to provide an alternative arrangement agreed to by the Employee, they must revert to the Employee in writing with confirmation of the following:
– Exact details of the arrangement.
– Proposed Start Date
– if approval is for a trial or temporary period the proposed End Date
– if for an indefinite duration details of any ongoing review requirement
– details of any equipment to be provided by the employer/
– details of any allowances to be paid to the employee to cover associated costs
A COUNTER-OFFER
If the Employee submits a Counter – Offer to the alternative arrangement proposed by the Employer, the Employer must agree to or reject the Counter -Offer within 1 month of receiving it. Reasons for rejection must be given in writing.
VALID REASONS FOR REFUSING THE EMPLOYEE’S REQUEST FOR REMOTE WORKING
There are 13 stated reasons open to the Employer to turn down a Request for Remote Working
(i) The nature of the work does not allow for remote working
(ii) Work cannot be re-organised amongst existing staff.
(iii) There is potential for negative impact on the quality of business product or service.
(iv) There is potential for negative impact on the performance of the employee making the request or other employees.
(v) Additional cost burdens
(vi) Concerns around protection of business confidentiality/intellectual property
(vii) Concerns around the suitability of the proposed workspace on health & safety grounds
(viii) Concerns around the suitability of the proposed workspace on data protection grounds.
(ix) Concerns for the internet connectivity of the proposed remote working location
(x) Concerns for the commute between the proposed location and the Employer’s premises
(xi) A conflict between the proposal and an existing collective agreement.
(xii) Planned structural changes that would render any of the foregoing reasons
applicable.
(xiii) The employee is the subject of an ongoing or recently concluded disciplinary process.
REQUIREMENT FOR EMPLOYER TO HAVE A REMOTE WORKING POLICY
Employers will be required under the new legislation to establish and maintain a Formal Remote Working Policy. Failure to have such a Policy and/or a failure to bring it to the notice of the employee shall constitute an offence which can be prosecuted by the WRC.The punishment on conviction is a fine of up to €2,500.00
DISPUTES TO BE HEARD BY WRC/LABOUR COURT
Disputes under this legislation are to come within the ambit of the Workplace Relations Act – to the WRC in the first instance and to the labour Court on foot of any appeal. Awards by either body are to be capped at 4 weeks renumeration. Complaints to the Workplace Relations Commission are not on the merits of the decision to refuse the request but solely in relation to the failure on the part of the Employer to give notice of the reasons for the refusal.
PROHIBITION ON PENALISATION OF EMPLOYEES SEEKING REMOTE WORKING
An Employee shall not be penalised for exercising their rights under this legislation. Penalisation incudes a suspension, lay-off dismissal, demotion, los of promotion opportunity, unfavourable change in conditions, imposition of any disciplinary sanction, coercion or intimidation.
CODE OF PRACTICE
The Act will provide for a Code of Practice to guide employers, employees and their representatives on the general principles which will apply to the operation of remote working requests. Whilst failure to adhere to the Code will not constitute an offence in itself it can beconsidered as part of the adjudication process of any WRC dispute.
RECORDS
Employers will be required to maintain such records as to demonstrate that the Act is being complied with- to include its Remote Working Policy and all documents associated with remote working requests submitted by employeesIf
If you would like further information or advice on how this new Bill will impact your business please contact Brian Gill by email or on 071 916 2032