Remote Working Legal Update 2021

The Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD (on Friday 15th January) published Irelands’ first National Remote Work Strategy to make remote working a permanent option for life after the pandemic. The Strategy sets out plans to strengthen the rights and responsibilities of employers and employees, to provide the infrastructure to work remotely, and sets out clear guidance on how people can be empowered to work remotely from the office. Veradkar said “Working from home has become the norm for many in 2020. We want remote, blended, and flexible working arrangements a much bigger part of life after COVID-19. We have seen that there can be huge benefits – more flexibility, less commuting, more time for family and friends. It is better for the transport emissions, and for quality of life, but it must be done right. Employment rights need to be updated, we need to give guidance, and in many cases, we need to provide actual physical working space. It also requires a cultural shift in favour of facilitating it as an option. This Plan shows how we will bring all those parts together. I think it will make a real difference to people’s working lives.”

The Government will introduce legislation in the third quarter of 2021

 “Remote work” means work which could be performed at the employer’s premises but is carried out away from those premises on a regular basis. Under the current plans, the legislation will create a right to request remote working, but there is no suggestion that employers must agree in all circumstances. It is likely that an exception will be carved out in circumstances where an employer is able to point to objective reasons why remote working is not suitable in respect of the role in question (or is not suitable in respect of the role in question all the time). The proposals are silent on this point, but it seems reasonable to assume that no blanket right to work will be implemented. Commentary suggests that employees will have the right to appeal to the Workplace Relations Commission in circumstances where a request to work remotely is refused – but that is not the same thing as saying an employer must acquiesce in all circumstances. It is likely that the WRC will only intervene where the refusal is unreasonable.

The Right to Disconnect is a concept which has gained some traction in Europe. It is now intended that a Code of Practice will be introduced in Ireland dealing with it. The “Right to Disconnect” refers to an employee’s ability to disconnect from work at the end of the working day. A reason it is being introduced in tandem with new rules around remote working is probably because employers will have less scope to monitor employee working hours when they are working remotely.

The Strategy encourages employers to review their current business models to examine whether remote working is suitable for their workforce. Remote working is not suitable for all roles and industries, particularly those which require employees to be physically present on-site and in sectors such as construction, manufacturing, and healthcare. However, it would be useful for organisations in all sectors to review their current processes, and engage in open communication with their workforce, to determine whether remote working can be facilitated for roles that traditionally required a physical presence in the workplace, perhaps using technology and virtual telecommunication platforms. As noted by the Tánaiste in his foreword to the Strategy, many organisations are likely to adopt a blended approach to remote working, whereby part of employees’ working time will be spent at the organisation’s premises, with employees working remotely for the remainder of their contracted working time.

A right to request remote working will be put into legislation in the third quarter of 2021. The government is required to legislate in this area under the EU Directive on Work Life Balance, which requires Member States to give parents and carers the right to request flexible working. The new domestic legislation is likely to set out a framework for making and responding to requests.

Meanwhile, the Workplace Relations Commission (WRC) has been tasked with preparing a code of practice on the right to disconnect (Code). The Code is expected to be published in the first quarter of 2021. The purpose of the Code is to help employees preserve a distinction between their home and work lives, which is a boundary that is easily blurred when the home becomes the workplace. The WRC and courts will interpret an employer’s existing obligations under the Organisation of Working Time Act 1997 considering the guidance in the Code. In the future, changes may be made to health and safety guidance and tax arrangements that apply to remote working. Employers will need to factor these employment law developments into their workforce plans for when the current public health crisis subsides. Employers should ensure that they have appropriate flexible working policies and procedures in place.

Further advice and guidance on this can be sought from your HRP Group HR contact or email info@hrpgroup.ie for further information.

2021-09-08T05:31:18+00:00