Guide to Ireland’s Draft ‘Right to Request...

By Bryan Dunne, Partner, and Denise Moran, Senior Associate, at Matheson law firm

As you will have seen, the Irish Government published the Draft General Scheme of the Right to Request Remote Working Bill 2022 (the “Draft Scheme”) on Tuesday, 25 January 2022. We’ve reviewed the content of the Draft Scheme and felt it would be helpful to you as an employer to receive the below summary of its key features.

The Draft Scheme provides a legal framework for employees to request remote working and for employers to approve or refuse such a request. This builds on the Irish Government’s vision to make remote working a permanent feature of the Irish workplace, as set out in its National Remote Work Strategy – Making Remote Work. 

Significantly, however, the Draft Scheme does not confer an automatic entitlement to work remotely – rather the Draft Scheme outlines the process to be taken (by both the employee and employer) when making and assessing a request to work remotely. On balance, the draft legislation bestows broad flexibility on employers; allowing employers to refuse such requests on the basis of the employer’s subjective business concerns – provided the employee is afforded the opportunity to make his/her case to work remotely in line with the process detailed in the legislation.

What are the key points of note for employers? 

It remains to be seen what changes will be made to the Draft Scheme following the pre-legislative scrutiny that will now be undertaken until enacted as law but, as currently drafted, employers should take note of the following key features:

1.    Remote Working Policy

Employers will be required to put in place a Remote Working Policy (a “Policy”), (i) outlining the process for employees to follow when making a remote working request (a “Request”); (ii) the time frame within which decisions will be made by the employer; and (iii) how remote working will operate within the company. It is anticipated that a Code of Practice will follow the enactment of this legislation and provide further colour/detail of the specifics to be included in such a Policy. 

The Policy must be provided to new employees on commencement and when amended. Notably, any failure to adequately communicate the existence and content of such a Policy to employees will be attracting a potential fine of up to €2,500. 

2.    Employee Requests

Both full-time and part-time employees with at least six months continuous service are entitled to submit a Request to their employer. The Draft Scheme intends that such a Request be made in a prescribed form and places an onus on the employee to provide specified information, including (i) the proposed remote working location; (ii) the proposed start date for the arrangement; (iii) the proposed number of remote working days; and (iv) details of any previous Request made. Employees will also be required to conduct a self-assessment of the suitability of the proposed remote work location taking account of details such as (i) data protection and confidentiality protections; (ii) internet connectivity levels; (iii) ergonomic suitability of the workspace; and (iv) any equipment requirements. The employer may have a template/precedent for employees to use and this should be included in the Policy. The employer may also request further details if necessary and/or seek to meet the employee to discuss the Request in more detail. 

Helpfully from the employer’s perspective, there is a limit on the number of Requests that a particular employee can make within a one-year period. The Draft Scheme provides that, where a Request has been properly assessed by the employer but declined, the employee will have to wait twelve months before another Request can be made. By way of exception, where the employee moves to a new role within the company, a fresh Request can be submitted earlier.

3.    Handling Requests 

Following receipt of a Request and consultation with the employee and/or a recognised trade union, the employer decides whether the Request is wholly or partially approved or declined. This decision must be made and communicated to the employee within 12 weeks.

A decision to approve the Request should set out in writing the details of the working arrangement, including whether the Request is granted on a trial basis or indefinitely (which should include details of any ongoing review). Where a Request cannot be approved in the manner proposed or where an employer proposes a different arrangement, the employee has one month to agree to or reject that proposal, with reasons for the rejection of the counteroffer recorded in writing. 

Helpfully employers can consider a Request ‘withdrawn’ where the employee fails to engage in the process, for example by not providing additional requested information or not attending a meeting arranged by the employer to discuss the Request.

4.    Grounds for an employer to refuse a Request

Of welcome note, as currently drafted, an employer will have a broad discretion to refuse a Request where it is satisfied, in its subjective view, that the proposed working arrangement is not suitable on the basis of one of the “business grounds”. The Draft Scheme details 13 such business grounds via a non-exhaustive list including for example:  

§ The nature of the work;

§ Potential negative impact on quality of business product or service or on performance of the employee or other employees;

§ Burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business;

§ Concerns regarding the protection of business confidentiality and intellectual property or concerns regarding internet connectivity or the suitability of the proposed workspace on health and safety or data protection grounds; 

§ Where there is an inordinate distance between the proposed remote location and the employer’s on-site location; and / or

§ Where the employee is subject to ongoing or a recently concluded formal disciplinary process.

However, notably absent is any reference to an organisation’s commitment to re-instilling its culture or enhancing morale, or the need for teams to meet in person to foster creativity and collaboration or, indeed, to provide an opportunity for social interaction or training and development. It is anticipated that, notwithstanding an employer’s ability to cite subjective business reasons as the basis for refusing a Request, the extent to which such reasons will be immune from scrutiny may be called into question given the reality that many employees have been successfully working remotely for almost two years. This “track record” of successful remote working arrangements to date may undermine an employer’s ability to justify refusals to such Requests in the future and the relevant Minister has commented that “employers will have to give a solid reason that stands up”.

Lastly, it is worth noting that the General Scheme does not expressly require an appeals process to be put in place, but this may well be a feature that makes its way into the final legislation.

5.    Potential complaints to the WRC

Good news for employers is that there is currently no facility under which an employee can interrogate the substance or merits of a refusal or seek recourse form the Workplace Relations Commission (“WRC”) where it does not agree with the employer’s decision.  In short, there is no scope for an employer’s assessment and final decision to be challenged or overturned by the WRC – rather the WRC can only require compliance with the employer's procedural/technical obligations set out in the legislation.  However, the relevant Minister has cautioned that the General Scheme is subject to change. He indicated that an employer, in refusing a Request, would need to provide the basis for a refusal and the validity could be challenged before the WRC. 

In terms of employee recourse, the Draft Scheme provides for a right of appeal to the WRC for the following very limited technical breaches: 

§ Employer failure to return a decision within the 12-week timeframe;  

§ Employer failure to provide the grounds for refusal; or 

§ Employer incorrectly deemed Request to be withdrawn by employee. 

The Draft Scheme also provides protection for employees from any penalisation where a Request is made or is proposed to be made. It is important that employers are live to this exposure as penalisation includes less obvious examples such as loss of opportunity for promotion or an unfavourable change to an employee’s terms and conditions of employment. 

In a successful claim, the WRC may require the employer to take a specific course of action, or it may make an award of compensation of up to four weeks’ remuneration. In addition, refusals of such applications may be referred to in the context of other employee complaints, including discrimination claims or claims of constructive dismissal. 

What is the timing on this? 

The Government has indicated that the Bill will be published before Easter and passed into law before summer recess. We will update you on this as it progresses as well as any key changes that will be made. 

Once passed, employees will be permitted to submit a Request pursuant to their statutory right. However, in light of the fact that employers are now facilitating a large-scale return to the workplace (following the Irish Government’s recent announcement and the publication of the Transitional Protocol) and as a result of the widespread media coverage of the General Scheme, our view is that many employees may wish to submit remote working requests in advance of the law being enacted. 

What should we be doing now? 

There are a number of steps that employers can take now, to best equip themselves to handle such remote working requests. We recommend that employers are proactive and take the following actions as a matter of priority:  

§ Reflect on your business’ approach to remote working in the past two-year period and consider the relative pros and cons associated with this workplace model including consideration of costs, data protection, confidentiality, health & safety, and impact on employee morale.

§ Identify specific departments and/or roles that may not be amenable to remote working at the outset (on the basis of the “business grounds” set out in the Draft Scheme) and stress-test the extent to which your business will be in a position to justify any refusal to Requests from those individuals.

§ Engage (or continue to engage) with staff and staff representatives as part of the return-to-work movement (in line with the Transitional Protocol) to fully understand staff perspective and expectations in relation to remote working in the future.

§ Prepare a draft Remote Working Policy. Although we have a good indication as to what the parameters of the right will look like, we are likely to see some changes to the right that will be enacted and we, therefore, suggest that any Remote Working Policy is not rolled out until the right to request remote working is enacted into law. Where employers have already rolled out a Remote Working Policy, we suggest that employees are informed that this will be updated in due course to account for the right to request remote working and the applicable Code of Practice. 

§ Review existing policies and procedures to determine what updates may be necessary. For example, where employees are going to be working remotely on a hybrid or full-time basis, perhaps the company’s disciplinary policy should be updated to provide for dealing with any disciplinary processes in a hybrid manner. 

Let me know if you have any questions in relation to any of the above or alternatively, if you would like to arrange a call to discuss. 

11^th Feb, 2022

Bryan Dunne, Partner + Denise Moran, Senior Associate

D: +353 1 2322388  /  T: +353 1 232 2000  /  E: [email protected] / W: www.matheson.com