First published: August 23rd, 2021
In January of this year, we reported on the Government’s intention to introduce a new right for employees to request remote working. Subsequently, the Department of Enterprise, Trade and Employment (“the DETE”) carried out a public consultation process on this proposed new employee right, with Peninsula entering its own submission on this key development.
The DETE has now published the details from that consultation process with the Tánaiste Leo Varadkar commenting that, “We have a real opportunity now to make remote and blended working a much bigger part of normal working life. Introducing a right to request remote working will set out a clear framework to facilitate remote and blended work options, in so far as possible.”
We examine the outcome from that consultation process in more detail below. It’s clear that the right to request remote working will be introduced, and the details from the consultation process will give employers an indication on how the new statutory right might look once introduced.
Key questions
1. What timeframe for response should apply to employers on receipt of an employee’s complete request to work remotely?
64% of those who engaged in the consultation process proposed a ‘one-month' timeframe for employers to respond to an employee request, with 18% suggesting ‘two months’. Thus, it seems likely that a timeframe of around one month will be introduced.
Peninsula had proposed a ‘six-week’ timeframe in order to keep the timeframe consistent with other notice periods, such as an employee requesting parental or carer’s leave. The DETE specifically cited Peninsula’s submission that “It is important that the introduction of new rights does not happen in a silo and instead is cognisant of other rights and notice requirements.”
2(a). What minimum length of service is appropriate before having an entitlement to make a request for remote work?
31% of respondents proposed a ‘one-year’ minimum length of service requirement, while 25% proposed no minimum service requirement (i.e., an individual could make the request upon commencement). 16% proposed ‘six-months’ service and 12% proposed ‘after probation’. Given the differing views on this subject, it’s difficult to predict whether or not there will be a minimum service requirement.
Peninsula had proposed a one-year service requirement. The DETE again quoted Peninsula’s submission where we proposed a one-year timeframe given that, “Difficulties will emerge, including difficulties with other employees, where a new employee engages in that recruitment process based on working at the employer’s place of work only to then immediately request remote working as soon as they commence.”
2(b). After what duration can another request be submitted if the first request was declined?
It seems clear that there will be a minimum duration that employees will have to wait to resubmit a request for remote work given that 89% of respondents proposed durations varying from one year to three months. 11% proposed that employees ought to be able to resubmit a request immediately after an initial request has been declined.
Peninsula had proposed a one-year minimum period to allow employers to plan their operations effectively and reduce the chances of multiple claims being made to the Workplace Relations Commission (WRC) by an employee with multiple request rejections.
3. As an employer, how confident would you currently be in carrying out a risk assessment of an employee’s proposed remote workplace? What, if any, additional information, guidance, or assistance might you require?
44% of employers replied that they were “not confident” in carrying out a risk assessment of an employee’s proposed remote workplace. Therefore, the introduction of a statutory right for employees to request remote working will be of significant concern to those employers as a risk assessment would be required. This emphasises the importance for employers to seek appropriate health & safety guidance.
Peninsula raised this concern in its submission, outlining that “One of the biggest barriers to employers embracing working from home centres on the perception that they will be liable for injuries suffered in the home. It is submitted that dedicated guidance and clarity from the Department and the HSA needs to focus on this area in isolation instead of making it a generally touched upon topic in wider guidance documents.”
4. Should there be a provision inserted in the legislation that employers must have a policy on remote work which can be inspected by employees and the Workplace Relations Commission?
84% of respondents were in favour of a legislative requirement that employers must have a remote working policy, so it’s likely that employers will be required to have such a policy and should start considering this now.
Peninsula similarly proposed that a written policy ought to be required on the basis that the statutory right to request remote working will inevitably be introduced and having a written policy will assist employers in dealing with such requests. However, Peninsula prefaced this by stating that any such requirement needs to be accompanied by a clear Code of Practice from the DETE which sets out the minimum requirements of such a policy. Peninsula has strongly advocated for the introduction of a Code of Practice model.
5(a). What are reasonable grounds for refusing a remote working request?
Peninsula proposed eight specific grounds for refusing a request, together with a catch-all refusal ground of “any other refusal which is reasonable in all the circumstances”. It seems clear that the “physical nature of the job” will be at least one ground for refusal as 38% of all respondents had cited this ground.
As mentioned above, Peninsula has strongly advocated a Code of Practice model and this is reflected in the DETE’s report where it states that “A number of submissions considered that the grounds for refusal of a request should be included in a Code of Practice.”
5(b). Is it acceptable that an employer offers an alternative hybrid working pattern with a combination of remote work and on-site work?
86% of respondents agreed that a hybrid working pattern (a combination of remote work and on-site work) would be acceptable. Peninsula agreed that this would be an acceptable response on the basis that such a counter-offer could fall under the definition of a “refusal which is reasonable in all the circumstances” as detailed in 5(a) above.
6(a). If an employer seeks to withdraw from the arrangement, what is a reasonable notice period of intention to do so?
27% of respondents proposed that one month would be reasonable notice, with 25% proposing three months and 18% proposing six months. Peninsula had proposed a six-week timeframe given that we had similarly proposed that employers would have six weeks to reply to a request for remote working (see question 1 above). The DETE quoted Peninsula’s submission in this respect where we had stated: “that an employer should provide the same notice that the employee is expected to provide when requesting remote working.” It’s Peninsula’s view that the timeframes should be as uniform as possible to avoid confusion and to make the process as straightforward as possible.
6(b). If an employee seeks to withdraw from the arrangement, what is a reasonable notice period of intention to do so?
40% of respondents proposed one month would be reasonable notice, with 20% proposing three months and 13% proposing two months. For the reasons outlined at 6(a) above, Peninsula proposed six weeks would be appropriate, and the DETE specifically cited this proposal in its report. Again, it’s Peninsula’s view that consistency is crucial here.
6(c). If an employer seeks to change the specific details of the arrangement, what is a reasonable notice period of intention to do so?
36% of respondents proposed that one month would be reasonable notice, with 20% proposing three months and 11% proposing two months. For the reasons outlined at 6(a) above, Peninsula proposed six weeks would be appropriate. Again, it’s Peninsula’s view that consistency is crucial here.
6(d). If an employee seeks to change the specific details of the arrangement, what is a reasonable notice period of intention to do so?
44% of respondents proposed one month would be reasonable notice, with 17% proposing three months and 11% proposing two months.
For the reasons outlined in 6(a) above, Peninsula proposed six weeks would be appropriate. It’s quite concerning to see that the DETE received such differing responses to questions 6(a) to 6(d) from the same respondents as this could result in different timeframes being set out in each of these categories and cause confusion. However, it’s noteworthy that ‘one month’ was the top choice in each category and, therefore, it’s quite possible that once remote working has been agreed that either the employer or employee could look to change that arrangement with one months’ notice.
7. Should the employer bear the cost of providing all equipment for a remote working arrangement as well as covering the cost of maintenance?
85% of respondents agreed that employers should be expected to bear the cost of remote working. Thus, it’s highly likely that employers will be obliged to bear at least some of the financial burden.
The DETE cited Peninsula’s submission where we set out “that any further legislation in this area must not go so far as to require the employer to provide a ‘replica’ or ‘identical’ workstation as would be provided should the employee work at the employer’s actual workplace. The focus should be on providing a ‘safe’ place of work, and not on providing an ‘identical’ place of work.”
8. Should an employer have an entitlement to monitor the activity of the employee?
84% of respondents agreed that employers should have an entitlement to monitor the activity of remote workers.
Peninsula similarly proposed that employers should have this right as employers need to monitor performance and engagement in work tasks. However, similar to question 7, the question posed by the DETE is very basic whereas the answer needs to be far more nuanced.
In this respect, the key question will be what amounts to “reasonable” monitoring of an employee. The DETE cited the following from Peninsula’s submission: “Employers have a legitimate interest in monitoring employee activity in general, and it is submitted that this particularly extends to individuals who are working remotely and not under direct supervision. This area is already heavily regulated and litigated, both in respect of the Data Protection Acts but also in respect of case law emanating from bodies like the European Court of Human Rights.”
Conclusion
Employers can expect the introduction of a right for employees to request remote working and should consider creating a policy on remote working now.
Employers should also consider upskilling managers on how to manage a team of individuals where some or all of them are working remotely. Furthermore, employers will need to consider how they’ll comply with the statutory obligation of keeping record of an employee’s working time when they’re working remotely, such as Blip by BrightHR.
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