Ireland’s National Remote Work Strategy – Key...

On Friday, 15 January the Department of Enterprise, Trade and Employment (“DETE”) published the eagerly awaited National Remote Work Strategy – Making Remote Work (the “Strategy”). The purpose of the Strategy is to give effect to the Irish Government’s vision that remote working is to become a permanent feature of the Irish employment landscape. 

In this paper, published here as a BEERG Perspectives, Deirdre Crowley and Denise Moran of Matheson provide an overview of the key points for employers.  

Why has this Strategy been published now?

Even before the pandemic, the traditional "9 to 5" working day had become a thing of the past. Employees’ working days were regularly dictated by business needs arising across multiple time-zones and the increasing demand of modern workplaces.  As a result, many employers introduced new ways of working, including the introduction of concepts such as flexible, agile and remote working. Indeed, in late 2019, the then Department of Business, Enterprise and Innovation published a report “Remote Work In Ireland”. 

The impact of Covid-19 firmly elevated alternative approaches to traditional ways of working to every company’s board agenda. The effect of the pandemic will likely be the most drastic change in the workplace landscape that we will experience in our working lives.  To reiterate the sentiment of the Tánaiste, Leo Varadkar, this shift to remote working would likely have taken decades had it been planned but instead, it took days.  

What are the Strategy’s key points of note for employers?

The Right to Request Remote Work

An employee’s right to request to work remotely will be legislated for in Q3 of 2021. This will not create a right for employees to permanently work remotely at their discretion, but a right to request remote work. 

The detail of the legislation is not yet clear. Based on analogous rights in existing legislation here and in the UK, key indicators are that it is likely that employers will be required to fully consider a request for remote working and provide a response within a certain timeframe. It is highly unlikely that employers will be obliged to grant such requests. Legislation may require employers to demonstrate that there is a good business reason or other justification for any refusal, and to establish a review or appeal process for requests that are refused. These measures would provide for a relatively robust right to request remote working whilst also striking a balance with an employer’s need to maintain and operate its business. 

The Right to Disconnect

The pandemic has brought the growing conversation around the need for a statutory right to disconnect into sharp focus.  The Organisation of Working time Act 1997 (“1997 Act”), in prescribing for strict daily and weekly rest periods and a maximum limit on working hours, purports to guarantee uninterrupted breaks from work. The 1997 Act arguably does not adequately provide for the realities of the modern workplace where advancements in technology allow us to be ever-contactable. This digital workplace and the always “on” culture makes it very difficult for employers to ensure that they are complying with their statutory obligations, particularly the obligation to keep records of hours worked.  

The Workplace Relations Commission (“WRC”) launched a public consultation in December 2020 (concluded on 22 January 2021) to inform the drafting of a new Code of Practice (the “Code”) on the right to disconnect which is scheduled for release in Q1 of 2021. Once approved, this Code will be admissible in evidence before the WRC but it is not legally binding on employers. Employers will welcome the initial indications that the Code is unlikely to be overly prescriptive. 

The Strategy highlights the key difficulty in devising a statutory right to disconnect and the same considerations apply in drafting the Code: the over-regulation of remote working and employee working hours could potentially undermine flexibility, which in and of itself, is a crucial benefit to many employees in the modern workplace. 

Ongoing and Updated Guidance on Remote Working will be published

The Strategy confirms what many employers have learned since March of 2020: remote working requires different measures, supports and approaches to traditional office-based work. 

The DETE has published guidance and a checklist on remote working for both employers and employees (the Guidance on Remote Working and Remote Working Checklist for Employers). These are very useful tools for employers preparing to facilitate remote working on a more permanent basis. They cover the key considerations which arise for employers including health and safety obligations, compliance with working time obligations, managing employee mental health, well-being and work-related stress and handling data protection concerns. These will be live resources, so should consulted regularly for updates. 

Employer Health and Safety obligations

The statutory obligations provided for under the Safety, Health and Welfare at Work Act 2005 (“2005 Act”) apply whether employees work from the office or remotely. The Strategy notes that a review is being undertaken at EU level of the governing health and safety laws and it is likely that changes in this area are on the horizon. For now, employers should continue to comply with their obligations under the 2005 Act and the HSA Guidance for Employers and Employees Working from Home. The Strategy expressly provides that it is paramount that employers discuss remote working arrangements with their employees and come together to manage the resulting implications, costs and expectations. 

Equality in the remote workplace

The Strategy acknowledges the many barriers which people with disabilities encounter at work including mobility, transport and physical access, and it provides that the facilitation of remote working could provide people with disabilities the opportunity to find employment which may otherwise be prohibitive. 

Separately, the  Strategy squarely calls out the reality: Remote working, as part of a broader flexible working policy, presents an opportunity to address some of the barriers to the full participation of women in the workforce. The Strategy states that the increasing ability to provide flexible working (including the provision of remote working) has the potential to ensure the retention of women in the workplace. 

However, the Strategy flags an important consideration: increased remote working reduces visibility in the workplace. The Strategy provides for a best practice approach in ensuring equal opportunities apply as and between remote and office-based workers to ensure that limited (or no) office time does not adversely impact upon an employee’s career progression / promotion opportunities. 

What should employers do now?

For the moment, we recommend that employers take a “wait and see approach” in terms of updating their policies until the legislation and the Code are published over the course of 2021. 

We suggest that employers use this time to identify and document ways in which employee disengagement can be facilitated outside of working hours. Meaningful and reasonable strategies include agreeing not to schedule meetings before or after core hours and encouraging employees not to check or send emails outside working hours or during their annual leave. 

Now is also the ideal time for employers to consider their businesses’ suitability for remote work and assess the roles which are not compatible with such an arrangement so that the business is readily prepared to justify the refusal of any such request.