Friday, January 15, 2021
This briefing note is designed to assist employers in understanding what the Government’s new remote working plans mean in practice. These plans were announced earlier today.
The Government has simultaneously announced that it intends to take action in relation to the “Right to Disconnect” from work.
Remote working – what is intended?
In a nutshell, the Government intends to give all Irish employees the right to request to be allowed to work remotely. It also appears that employees will have the right to seek the intervention of the Workplace Relations Commission if an employer refuses without good reason.
When are these changes likely to take effect?
The Government will introduce legislation in the third quarter of 2021.
What does “remote work” mean?
It obviously has a number of meanings but for the purposes of the Government’s new plans, “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.
Will I be obliged to grant every request for remote work?
Almost certainly not. 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.
What about the Right to Disconnect – what is that?
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 Code of Practice will be introduced in the first quarter of this year.
What is the status of a Code of Practice?
A Code of Practice is not law – however, it can be relied upon in the Workplace Relations Commission.
What this means in practical terms is that if an employee brings a claim in relation to their working hours (i.e., a claim that they are unable to disconnect from work at the end of the working day), the provisions of the Code of Practice may be considered.
A lot will depend on the precise provisions of the Code when published.
Is there already a Right to Disconnect in Irish law?
Arguably, yes. Irish employees are covered by the Organisation of Working Time Act, 1997. This legislation imposes a maximum 48-hour working week (with certain very limited exceptions). In other words, there is already a limit on the amount of time that an employee must spend working.
In addition to this, individual contracts of employment will generally always provide for contracted working hours. An employee is under no obligation to work outside those working hours (save in limited circumstances – employment contracts will typically provide for a certain amount of overtime, but this will generally always be the exception rather than the rule).
What else is in the proposals?
The proposals are largely aspirational at this stage, but it appears that the Government is going to make a significant investment in “remote work hubs and infrastructure” in underserved areas. What this will mean in practice has yet to be determined.
What should I do now?
It appears that the Government intends to move forward with these plans quite quickly. Employers should consider whether there are any roles within their organisations that cannot be carried out remotely (either all or part of the time).
An in-depth analysis is wise – because employers are likely to have to justify refusals once the proposals become law.
This analysis is particularly important for large organisations – because there is no doubt the idea of remote working will prove attractive for large numbers of staff.
For further information on this article, please contact Patrick Walshe.