The Right to Request Remote Working is part of the government’s vision to make remote working a permanent feature of Ireland’s employment landscape in a way that can benefit all – economically, socially and environmentally. CIPD Ireland is disappointed that the government has decided not to go further and bring in a Right to request flexible working, which would provide employees with more say over when and how they work, not just where they work.

The Draft Scheme of the Right to Request Remote Working Bill 2022 outlines the legal framework and floor of protection to be put in place around requesting, refusing or availing of remote working. The Act, when passed, will also provide legal clarity to employers on their obligations for dealing with such requests. Where existing more favourable remote or flexible working arrangements are in place, these are not expected to be undermined by this development.

Below is a summary of the key points of the Draft Scheme.

When the legislation comes into force, employees will be able to apply for remote working. The Draft Scheme proposes that employees will only be eligible to submit a request once they have worked for their employer for a period of six months.

An application from the employee will be expected to contain relevant information to inform the employer’s decision. A request should outline the proposed remote working location, proposed start date, days and times to be worked remotely, as well as a self-assessment of the suitability of the workspace. This self-assessment has to include specific job requirements such as data protection, confidentiality, internet connectivity, ergonomic suitability of the workspace and any equipment or furniture requirements. Employers must respond in line with their Remote working policy and have no more than 12 weeks to do so.

When agreed, the employer will have to put a formal agreement in place. This must include the exact details of the proposed remote working arrangement, the start date, end of any trial period, timing of reviews, and any equipment or allowance that is payable.

CIPD Ireland believes that some element of flexibility around when and where an employee may work should be covered in any agreement. Otherwise, there may be a loss of flexibilities around appointing days to be on-site or attend for specific activities which may occur across different days of the week.

Where an employer cannot agree to the request, they may offer an alternative remote working arrangement, which the employee has one month to accept / reject. Once rejected (and possibly appealed) another request cannot be made by the employee for 12 months.

The Draft Scheme details specific grounds for refusal.  A request for remote working can be declined when it is not suitable on business grounds. Business grounds can include, but are not limited to:

(a) the nature of the work not allowing for the work to be done remotely

(b) cannot reorganise work among existing staff

(c) potential negative impact on quality of business product or service

(d) potential negative impact on performance of employee or other employees

(e) burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business

(f) concerns for the protection of business confidentiality or intellectual property

(g) concerns for the suitability of the proposed workspace on health and safety grounds

(h) concerns for the suitability of the proposed workspace on data protection grounds

(i) concerns for the internet connectivity of the proposed remote working location

(j) concerns for the commute between the proposed remote working location and employer’s onsite location

(k) proposed remote working arrangement conflicts with the provisions of an applicable

collective agreement

(l) planned structural changes would render any of (a) to (k) applicable

(m) employee is the subject of ongoing or recently concluded formal disciplinary process.

Every employer will have to put a Remote working policy in place, specifying how remote working requests will be managed, the time frame in which a decision will be made and the specific conditions which will apply. This will have to be communicated to all employees at least once a year, as well as to all new employees as they join. It is envisaged that a Code of practice will be developed to outline key details of such remote working policies, with employers able to adapt as relevant to the specific workplace.

Records which show compliance with the Act will need to be kept for at least three years.

Under the Draft Scheme employees are protected where they propose or avail of their entitlement to request remote working and cases may be taken under either this Act or the Unfair Dismissals Acts. Availing of a remote working request will not be considered as appropriate grounds for suspension, layoff or dismissal, demotion or loss of opportunity for promotion, and may not result in unfavourable changes in employment conditions, disciplinary action, reprimand or other penalty, or coercion or intimidation. Cases will go the Workplace Relations Commission. However, these cannot be initiated until at least two weeks after an internal appeal process has commenced where the employer has not responded to a request or not satisfied the grounds for refusal. 

A review of the legislation will take place between two and three years of the commencement of the Act to assess the arrangements for requesting remote working and the uptake of remote working.

The Department of Enterprise Trade and Employment also produced two additional documents on the right to request remote working – a Regulatory Impact Assessment and an International Review of practice.

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