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Right to Request Remote Working

  • Ireland
  • Employment law

28-01-2022

The Draft Scheme of the Right to Request Remote Working Bill 2022 (the “Draft Scheme”) was published by the Minister for Enterprise, Trade & Employment on Tuesday 25 January 2022.

The Government has indicated that draft legislation will be published in mid-April 2022 and enacted in July 2022 at the earliest.

How can an employee make a request?

Under the proposed legislation, employees with 26 weeks’ continuous service will be entitled to submit a request for remote working arrangements. An employee will need to give notice in writing of the full details of their proposal. The Draft Scheme puts the burden of proving the suitability of the request onto the employee, who must include a self-assessment of the suitability of the proposed remote working location, including the specific requirements for carrying out the job, data protection and confidentiality, minimum levels of internet connectivity, ergonomic suitability of the proposed workspace and any equipment or furniture requirements.

Responding to a request

Following receipt of a request an employer will be required to consult with the employee, or the trade union representing the employee, before making a decision. The Draft Scheme provides that an employer will have to respond to a request for remote working in writing within a reasonable time period, not exceeding 12 weeks from receipt of the request.

If an employer declines an employee’s request, they must communicate in writing the ‘business grounds’ for the refusal.

The Draft Scheme provides a list of non-exhaustive 13 reasons that may form the basis for employers refusing a request where an employer is satisfied that the proposal is ‘not suitable on business grounds’. Other business grounds may be given for refusal and what constitutes business grounds for refusal will be a matter for the Employer based on their subjective assessment.

Such business grounds include, but are not limited to:

1. The nature of the work

2. Inability to re-organise work among existing staff

3. Potential negative impact on quality of business product or service

4. Potential negative impact on the performance of the employee or other employees

5. Burden of additional costs, having regard to the scale and financial resources of the employer’s business

6. Concerns for the protection of business confidentiality or intellectual property

7. Concerns for the suitability of the proposed workspace on health and safety grounds

8. Concerns for the suitability of the proposed workspace on data protection grounds

9. Concerns for the internet connectivity of the proposed remote working location

10. Concerns for the commute between the proposed remote working location and employer’s onsite location

11. The proposed remote working arrangement conflicting with the provisions of an applicable collective agreement

12. Planned structural changes

13. That the employee is the subject of ongoing or recently concluded formal disciplinary process.

Once an employee has submitted a request, he or she will not be able to submit another request for a period of 12 months. However, this restriction will not apply where the employee’s role has changed in the meantime.

An employer must maintain records of employee’s remote working requests for a period of 3 years from the date of the request.

Right to appeal

The Draft Scheme has come in for criticism for giving employers too much latitude to refuse requests for remote working. Employees can only make a complaint to the Workplace Relations Commission (the “WRC”) in respect of non-compliance with the requirement to respond to a request and to give reasons for the refusal of a request. Employees cannot complain about the validity of the reasons given by the employer. However, it is anticipated that this will change as the Draft Scheme proceeds though the legislative process.

If the employer’s remote working policy provides for an internal appeals mechanism, an employee cannot make a complaint to the WRC until 2 weeks following the commencement of an internal appeals process.

The WRC can direct the employer to communicate a decision on an employee’s request and notice of the grounds for refusal as necessary. The WRC can also direct the payment of compensation of up to four weeks’ remuneration.

An employee is protected from penalisation for having availed of their entitlement to request remote working.

It is likely that refusal of remote working requests may also be a basis for other employment claims, most obviously, of indirect discrimination or constructive dismissal.

Remote Working Policy

The Draft Scheme also requires employers to establish and maintain a remote working policy. This policy should identify:

• The manner in which remote working requests will be managed;

• The time frame for which a decision will be made, including the appeal process; and

• The specific conditions applying to remote working requests generally within the company.

When drafting the policy the Draft Scheme provides that employers shall have regard to the code of practice which, it is envisaged, will be prepared by the WRC to provide guidance to employers and employees on the right to request remote working.

The remote working policy must be brought to the attention of employees at least annually or following any amendment, and to all new employees upon commencement.

The Draft Scheme provides that failure to have a remote working policy in place will be an offence, for which an employer will be liable on conviction to a fine of up to €2,500.

How should employers prepare?

The draft legislation is still at early stage and likely to be amended, perhaps significantly, before it is enacted. However, it is not too soon for employers to start preparing their remote working policy now, if they do not already have one in place. Those who do have a policy in place will need to review it to ensure compliance with the legislation once enacted. As part of this process employers should consider how the business will be equipped to handle remote working requests, to ensure that the response is communicated on time and in accordance with the employer’s obligations.

If you require advice regarding how this proposed legislation will affect your organisation or assistance in drafting a remote working policy, please contact:

Joanne Hyde, Partner: JoanneHyde@eversheds-sutherland.ie, +353 1 644252

Julie Galbraith, Partner: JulieGalbraith@eversheds-sutherland.ie, +353 1 6644398

Maria Gallagher, Senior Associate: MariaGallagher@eversheds-sutherland.ie, +353 1 6644330

Emma Lavin, Associate: EmmaLavin@eversheds-sutherland.ie, +353 1 6644976

Niamh Diskin, Solicitor: NiamhDiskin@eversheds-sutherland.ie, +353 1 6441449

Emma Quinn, Solicitor: EmmaQuinn@eversheds-sutherland.ie, +353 1 6644909