Síobhra Rush was on RTÉ TV News talking about the government’s plans to promote remote working during the pandemic. Click here to watch.

On Friday, the Government launched the “Making Remote Work” National Remote Work Strategy which is aimed at ensuring that remote working “is a permanent feature in the Irish workplace that maximises economic, social and environmental benefits”.  

Under the National Remote Work Strategy (the “Strategy”) the Government promises to:

• mandate that remote work be the norm for 20 percent of public sector employees;

• review the treatment of remote working for tax and expenditure purposes in the next Government Budget;

• map and invest in a network of remote working hubs across the country;

• legislate for the right to request remote working;

• develop a code of practice for the right to disconnect; and

• accelerate the provision of high-speed broadband to all parts of the country

The most interesting aspects of the Strategy from an employer’s perspective are the plan to legislate for a right to request remote working and the development of a code of practice on the right to disconnect.

The right to request remote working

As set out in the Strategy, while all employees can, in theory, currently ask their employer to let them work remotely and there is Government guidance available for employees and employers on remote working, there is no legislative framework for how requests for remote working must be handled.  The Strategy notes that introducing legislation in this area will provide employees with a framework for making such requests and also provide clarity to employers on best practice in responding to such requests.  The Strategy does not set out the details of this proposed right, but the Government’s plan is to introduce the legislation by the end of September 2021.

What does the right mean for employees?

The right to request remote working does not give employees the right to work remotely or oblige employers to allow employees to work remotely.  It is likely to be similar to the right to request a flexible working pattern which applies to all employees who return to work after parental leave. Any guidance on its operation may be similar to the existing guidance on considering requests from employees to move to part-time working which is set out in Code of Practice on Access to Part Time Work.

Does this mean employers have to allow remote working?

No, the right does not oblige employers to allow remote working, but they will have respond to requests and show a clear and objective reason why they are refusing a request.  Failing to do so could give rise to claims from employees under equality legislation if they believe their employer’s refusal to allow them to work remotely is discriminatory.

What challenges does more widespread remote working pose?

The Covid-19 pandemic has undoubtedly resulted in many, previously reluctant, sectors embracing remote working at an accelerated pace.  However, there are challenges for employees and employers alike in more permanent remote working.  For example, health and safety will be a concern for many employers as the same duty to ensure a safe working environment applies when staff are working remotely, and it is acknowledged that it is more difficult for employers to assess and mitigate any risks in this environment.  Data security is another concern, particularly if employees might access confidential business information while working in a shared remote working hub or at home where other people are also working.  Similarly, employees working from home will have increased household costs such as broadband, electricity, heating and equipment.   The Strategy notes that Budget 2022 will involve a review of existing tax arrangements for remote working and assess the merits of future enhancements.  This review will hopefully lessen the impact of remote working on household expenditure.

Employers should implement a policy on remote working, and include a remote working procedure, to provide clarity on the common areas of concern such as health and safety, data security, provision of equipment and costs of remote working as well as detailing the circumstances when the arrangement can be terminated. 

The code of practice on the right to disconnect

As noted in the Strategy, employees have found switching off from work increasingly difficult while working remotely during the Covid-19 pandemic. The right to disconnect has been on the Government agenda for some time and it has tasked the Workplace Relations Commission with preparing a code of practice in this area for approval by the Minister for Trade, Enterprise and Employment in Q1 2021.

We recently considered the question of whether a specific right to disconnect is needed in Ireland and noted that while the existing working time and health and safety laws offer some protection to employees against excessive working hours, the current legal framework is inadequate to provide a genuine right to disconnect, particularly where working time thresholds are often not properly monitored or adhered to.  As noted in the Strategy, submissions received from stakeholders to the Government’s Public Consultation on Guidance for Remote Working have been mixed on this topic, in particular about how it might fetter flexibility for employers whose employees operate across different time zones and schedules.

The purpose of the code of practice is to provide protection to employees to ensure they can disconnect from work.  Although the code will be guidance, as opposed to binding legislation, it will be admissible as evidence in disputes before the WRC.  The code may therefore support employees in bringing certain claims arising from excessive working hours (for example, under the Organisation of Working Time Act).  The precise scope of the code of practice remains to be seen as the WRC Public Consultation on the right to disconnect is still open for submissions from stakeholders until 22 January 2020, to inform the drafting of the code.

What other developments are on the horizon?

The Strategy’s action points can be seen as part of a broader movement towards embracing different modes of working and encouraging greater work-life balance.  More developments are expected in this area in the coming years, particularly as Ireland has yet to implement the European Work Life Balance Directive.  This Directive, which has to be implemented by all Member States by August 2022, and its accompanying policy measures aim to ensure that Member States provide better support for work-life balance and more equal distribution of caring responsibilities as well as addressing women’s underrepresentation in the labour market.

The National Remote Work Strategy is available here.