Key Contacts: Patrick Walshe – Partner 

The Work Life Balance and Miscellaneous Provisions Act 2023 was signed into law by the President last year.

This update focuses on the changes implemented by the legislation in relation to: –

  • Remote working;
  • Flexible working;

Obviously, the concepts of remote and flexible working attracted a great deal of attention in the last few years – especially with the advent of Covid.

These concepts are relatively distinct – Remote working does not involve any change to terms and conditions of employment except working location. Flexible working can encompass changes to working hours/patterns.

The Government decided that both concepts would be addressed in a single piece of legislation – the Work Life Balance and Miscellaneous Provisions Act 2023.

The key changes being introduced are:

  • All employees may request remote working arrangements.
  • Parents and carers may request flexible working arrangements for caring purposes.

The legislation defines flexible working as:

There are two circumstances where flexible working arrangements can be requested:

  • For an employee to care for a child; and
  • For an employee to provide personal care or support for medical care purposes.

Under the Act, “remote working” is an arrangement whereby:

The employer must consider the request “having regard to his or her needs and the employee’s needs”.

The employer must then respond to a request at least 4 weeks after receiving it.

It is important for Irish employers to note that the sections of the Act relating to both remote and flexible working have yet to be commenced. Their commencement is dependent on a Code of Practice being published by the Workplace Relations Commission – which is imminently due to be published.

For employees in Ireland, there is a constitutional right to join a trade union, to join the union of your choice and finally, the right to leave a union. You cannot be discriminated against because you are in a union or because of your union activity.

Presently, there is no published information on the involvement of employee representatives and public authorities as regards their involvement in the implementation of remote work.

At the moment, there is no information published on any requirements for equipment and compensation for remote expenses. These issues could potentially be discussed in the Workplace Relations Commission’s Code of Practice, once published.

However, it is important to note that under the Safety, Health and Welfare at Work Act 2005, there is an obligation on all employers to ensure, as far as is reasonably practicable, the safety, health, and welfare at work of employees. This duty extends to providing and maintaining facilities and arrangements for the welfare employees at work. Issues relating to certain types of equipment – for example, adequate chairs and keyboards, would fall under the remit of the Act.

For the purposes of the Act “place of work” includes any, or any part of any, place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise. This obviously extends the scope of the Act to include both remote working and flexible working.

There is no specific provision in the Work Life Balance and Miscellaneous Provisions Act in relation to working time in the remote and flexible working context. Therefore, the Organization of Working Time Act 1997 applies in the same way as office-based workers. The Act provides that an employer cannot require employees to work for a period of more than 4 hours and 30 minutes without a break of at least 15 minutes. The Act also stipulates that an employer cannot require an employee to work for a period of more than 6 hours without allowing a break of at least 30 minutes. The Act also entitles those who work Sunday to Sunday premium, and the foregoing provisions are still applicable for cases of remote and flexible working.

The Workplace Relations Commission has published a Code of Practice addressing the right to disconnect in Ireland. The Code outlines best practice for employers in drafting appropriate right to disconnect policies and provides template clauses which each employer should tailor to their needs. The Code outlines that A Right to Disconnect Policy should emphasize that the expectation that staff disconnect from work emails, messages, etc., outside of their normal working hours and during annual leave. However, any employer policies should allow for occasional legitimate situations when it is necessary to contact staff outside of normal working hours, including but in no way limited to ascertaining availability for rosters, to fill in at short notice for a sick colleague, where an emergency may arise, and/or where business and operational reasons require contact out of normal working hours. This right to disconnect is of particular importance in the remote working context as oftentimes, the line between work life and home life potentially becomes increasingly blurred.

As mentioned above, employees working flexibly and remotely are protected by the Safety Health and Welfare at Work Act 2005 which places a general duty on an employer to protect the safety of employees in the workplace. There is another duty placed on employers in respect of providing the information, instruction, training, and supervision necessary to ensure an employee’s safety and health. Therefore, it would be prudent for employers to have adequate policies and training on any potential safety issues which could arise from remote working.

Obviously, in implementing remote working, employers have no intention of inspecting the homes of each employee. The Act has a provision which states that where risks cannot be eliminated, providing, and maintaining suitable protective clothing and equipment to protect an employee’s safety will be sufficient. This can potentially manifest as providing each employee with proper equipment for their safety. There is also an obligation on the employer to consult with their employees when introducing new technologies particularly in relation to the consequences of the choice of equipment and working conditions and the working environment.

The Data Protection Commission has given guidance on protecting personal data when working remotely. Both employers and employees should ensure that:

  • Any device used has the necessary updates, such as operating system, software, and antivirus updates;
  • Any device is used in a safe location, and that nobody else can view the screen, particularly if working with sensitive personal data;
  • Devices are locked if they are left unattended for any reason and stored carefully when not in use;
  • Effective access controls, such as strong passwords, and, where available, encryption are used to restrict access to the device, and to reduce the risk if a device is stolen or lost;
  • Work email accounts rather than personal ones are used for work-related emails involving personal data. If a personal email must be used, any contents and attachments should be encrypted, and personal or confidential data should be avoided in subject lines;
  • Where possible only the organisation’s trusted networks or cloud services are used;
  • Steps are taken to ensure the security and confidentiality of paper records, such as by keeping them locked in a filing cabinet or drawer when not in use and making sure they are not left somewhere where they could be read by others, lost, or stolen.

The Safety, Health and Welfare in Work Act does not differentiate between office work and remote work regarding liability for accidents.  Employees cannot directly claim compensation from employers under the health and safety legislation but can make a personal injury claim through the Injuries Resolution Board.

The Injuries Resolution Board is an independent statutory body that assesses personal injury claims after workplace accidents. If the Board finds an employer is responsible for the accident, it will set the amount of compensation they must pay an employee.

It is a criminal offence for an employer to fail to discharge their duty towards employee safety under the Act.

In relation to failure to implement the provisions on remote and flexible working, employees may have recourse in some circumstances, but the Workplace Relations Commission will only have the power to compel an employer to respond to a remote or flexible working request.

The Workplace Relations Commission will also have powers to intervene in cases where the employee maintains that their right to a postponement has been contravened. Similar recourse will be available where the employer terminates the arrangement, and the employee believes this is unjustified.

The WRC will have the power to award compensation in certain circumstances – but this is capped at 20 weeks’ remuneration in the case of flexible working and 4 weeks’ remuneration for remote working.

There are no plans to give the WRC the power to direct an employer to approve a request for a flexible working arrangement – the WRC only has the power to direct the employer to respond.