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‘Making Remote Work’ – National Remote Work Strategy Published

The Government’s Remote Working Strategy (the “National Strategy”) has been published following a consultation period that lasted several months. While this document goes some of the way towards providing the clarity that both employers and employees have been looking for since the mass adoption of remote working at the start of the pandemic last March, it remains a high-level document with limited detail.

This article aims to give an overview of what we know from the strategy and identify some of the issues which have yet to be clarified.

The Government Intends to Support Remote Working as a Goal

It is important to note that this new policy has committed the Government to support a mass move towards remote and flexible working even outside the context of the pandemic. The State itself aims to show leadership in this area by giving public sector bodies the target of moving 20 percent of the entire public sector workforce to indefinite remote working in 2021. That is approximately 80,000 workers.

The Government also aims to substantially invest in remote working hubs as well as review both employer and employee tax reliefs related to working from home in Budget 2022. The document is explicit that Government does not want to see a return to the “old” normal after the pandemic.

Employees Will Have the Right to Request Remote Working

The Government aims to publish legislation in the second half of 2021 to give employees the right to request remote working from their employers.

While the employers will not be obliged to automatically grant these requests, they will be obliged to give the employee a proper justification for a refusal to facilitate remote working . If an employee is not satisfied with the reasons for the refusal then they will have the option of referring the matter to the Workplace Relations Commission (“WRC”).

This will mean employers will need to have a detailed understanding of how remote working might impact their business and whether the issues they identify, such as employee mentorship and development, health and safety or quality and productivity can be addressed as part of a remote working request or amount to legitimate reasons for denying such a request.

What powers will the WRC have?

This is one of the major unknowns of the policy. The WRC Adjudication Service currently has the ability to issue either binding decisions or non-binding recommendations depending on the legislation under which the matter is referred to it. We do not yet know whether employees will have the option to refer remote working disputes to the WRC for binding decisions or non-binding recommendations.

Will this encompass a wider right to request flexible working options?

The National Strategy coincides with and refers to the adoption of the 2019 EU Directive Work Life Balance by the EU Council.

This Directive will require Irish legislation to be passed by the end of 2022 to enact a number of changes. One of the most notable is the right of parents of children up to 8 years old and carers to request flexible working conditions, such as reduced hours and flexible working schedules. Similar to the remote working requests employers will have to provide reasons for refusal in these cases also.

As such we may well see a wider right to request flexible working conditions alongside the right to request remote working when it is enacted later this year.

Right to Disconnect

Ireland has required employers comply with minimum break requirements as well as daily and weekly rest periods since the adoption of the Organisation of Working Time Act in 1997. Given that many employees now have 24-hour access to their work via laptops and smart phones there has been a call from workers groups to increase regulation in this area.

The Government has proposed that the WRC will publish a Code of Practice on “the Right to Disconnect” from work aimed at helping employees switch off from work and maintain boundaries with their employers. It is envisaged that this will be used to interpret disputes between employers and employees regarding minimum breaks and rest periods.

The Government and WRC aim to have this Code of Practice in the first quarter of 2021. It will be interesting to see if sufficient flexibility will be included in this Code of Practice to facilitate remote working.

Impact on Persons with Disabilities and the Employment Equality Acts

Whether or not the right to request remote working will be accompanied by an enforceable WRC decision making framework it will likely interact with existing employer obligations.

Most notably the Employment Equality Acts which create an obligation for employers to facilitate disabled employees carrying on at work with so called reasonable accommodations.

Since the onset of the pandemic and mass remote working it is quite possible that working from home requests, where they are made by a person with a disability for the reason of facilitating their management of that disability will have to be viewed as requests for reasonable accommodation. Employers will have to approach such requests cautiously and with a view to facilitating them if possible.

The recently published National Strategy specifically references Ireland’s poor record in this area, Ireland has the lowest rate of employment amongst persons with disabilities of all European countries, and it’s hope that remote working will help facilitate more people with disabilities remaining in work and entering the workforce.

Equally, employers should also bear in the mind the potential impact on certain employees with disabilities if it requires them to work remotely.  

Impact on Women in the Workforce and the Employment Equality Acts

The National Strategy refers to the importance of remote working in facilitating women with families remaining in the workforce.

However, it also explicitly refers to concerns that were raised during the public consultation phase that while remote working has been welcomed there are fears it could stymy women’s careers by becoming less visible in the workplace if they opt to work from home.

The Strategy states that Employers will need to make sure they are complying with their obligations under the Employment Equality Acts regardless of whether employees are working from home or the office. The implication of this statement is clear, employers will need to be cautious about pay or promotion gaps opening up between those working from home and those in the office or potentially risk gender and family status discrimination claims against them under the Employment Equality Acts.

Conclusion

While the pandemic has taken the choice out of everyone’s hands regarding remote working it is likely that later in the year this will change and discussions will begin between employers and employees as to how they want to work into the future.

This National Strategy will provide a useful backdrop for these discussions but ultimately it will be down to each employer to decide what they need from their employees and what they can facilitate. It will be important to be up front and consistent about these decisions as well as mindful of each employee’s needs. It will also be very important for the employer to keep a written record of the basis for each decision to be able to defend a claim if brought at a later date.

Authors – Anne O’Connell & David Murphy

29th January 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street

Dublin 2.

www.aocsolicitors.ie

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