by Aoife Gallagher Watson, Senior Associate in the Employment team, A&L Goodbody LLP
It’s been a year like no other in respect of employment law changes in Ireland and taking into account the degree of overlap between some of the proposed schemes and legislation (and the changing timeframes for implementation), anyone can be forgiven for losing track of where we have gotten to as we head towards the end of 2022.
2021 saw the introduction of the Code of Practice for Employers and Employees on the Right to Disconnect (the RTD Code), with the draft scheme for the Right to Request Remote Working Bill (the RRR Scheme) and Work Life Balance and Miscellaneous Provisions Bill 2022 (the WLB Bill) following in early 2022. While different in name and (largely) in nature, each bore somewhat similar entitlements and objectives, with both the RRR Scheme and the WLB Bill earmarked as priority items that would be in force by the end of summer. However, to date, only the RTD Code has been implemented.
First up, what are the differences between the three initiatives?
1. Right to Disconnect
Readers will recall that the RTD Code did not introduce an express legal right to disconnect, but instead, confirmed that employers have a responsibility to ensure employees can disconnect and contained advice on the steps that should be taken to respect employees’ “right to disconnect” and dis-engage from work outside of normal working hours.
Although not legally binding, the RTD Code makes clear that there is an onus on employers to ensure employees can disconnect and outlines the potential adverse consequences for them if they do not.
2. Right to Request Remote Working
As with the RTD Code, the proposed RRR Scheme does not give employees a right to work remotely, rather it provides employees with an express right to request remote working arrangements, by way of a prescribed process and includes a non-exhaustive list of business grounds upon which employers may decline such requests.
According to the Minister for Enterprise, Trade & Employment Mr Leo Varadkar at the time of publishing the RRR Scheme, the aim of the proposed legislation is “to get to a position whereby remote working / home working becomes a choice and that employers facilitate that [choice] provided the business gets done”.
Representatives from both employer and employee advocacy groups have each expressed disappointment and discontent with a variety of issues, including the inconsistency between the proposed RRR Scheme and existing legislative obligations (e.g. GDPR, work health and safety).
3. EU Directive on Work-Life Balance for Parents and Carers
The purpose of the WLB Bill is to implement the EU Work-Life Balance Directive (which was due to be transposed by August 2022). It will introduce a right to request flexible working for employees with children up to the age of 12 and those with caring responsibilities. However, what constitutes “flexible working arrangements” is somewhat open to interpretation, as the scheme merely refers to changing work arrangements, work patterns or hours of work.
It will also introduce a right for employees to take up to five days’ unpaid leave per year to provide medical care for family members or those in their household and a significant increase to the period in which new mothers are entitled to take paid time off work each day to breastfeed. The general scheme also proposes to amend maternity protection legislation to ensure that transgender males who have obtained a gender recognition certificate and subsequently become pregnant will fall within the scope of the legislation. It does not go so far however, as to introduce a right to request flexible working for all employees.
What are the new proposed time frames?
Publication of the corresponding legislation for the RRR Scheme and the WLB Bill was expected by the end of the summer and both have been flagged as priority items for the Government’s autumn term. On 23 September, the Government announced approval of the publication of the WLB Bill, which looks set for publication any day now. Whether any timelines will be impacted by the current economic or political climate, or the requests from employee/employer representatives to address gaps and alleged inadequacies in the proposed schemes remains to be seen (although given recent Government messaging, this looks less likely for the WLB Bill).
So what does all of this mean for my business? Do I need to take steps now?
1. Right to Disconnect
While a Right to Disconnect Policy is not an absolute requirement, a failure to follow the RTD Code is admissible as evidence in any legal proceedings before a Court, the Workplace Relations Commission or the Labour Court. Accordingly, employers are advised to cover the Right to Disconnect in some form, by putting a new policy in place or amending an existing policy to reflect the requirements of the Code. This policy should set out both the employer and employee’s obligations, state that there is an expectation that employees will disconnect from work emails, messages etc. outside of their normal working hours and during annual leave. Employers should, in order to retain some flexibility and recognise the challenges of many modern working patterns, refer to any business and operational needs which may require some out of hours/alternative working times.
2. Right to Request Remote Working
According to the RRR Scheme, employers will be required to put in place a formal remote working policy. Given the delay with this legislation, in practice, many employers are taking matters into their own hands and putting policies and procedures in place in the absence of final legislation (whether through choice or in response to employee/market demands).
Existing hybrid/remote working policies can be adapted when the legislation is finalised and the accompanying Code of Practice is published. Policies will also need to address ancillary issues, which are relevant to remote working such as health and safety, data protection, equipment, IT security (perhaps by cross reference to existing policies). Also, consideration should be given to tweaking:
- other policies such as grievance, disciplinary, and bullying and harassment policies to provide for employee processes to be conducted remotely, whilst preserving some flexibility for the employer to insist on holding certain meetings face to face as necessary; and/or
- employment contracts if remote working is to be a permanent or long-term arrangement for an employee (noting that this will require employee consent which may be obtained in a short side letter, amending this part of the contract, signed by both the employee and the employer).
3. EU Directive on Work-Life Balance for Parents and Carers
Employers can take a similar approach to the requirements of the WLD Bill, updating their existing policies to include a process for applying for flexible working, the eligibility criteria, and reasons for refusing a request. In addition, maternity policies will need to be amended to cover the changes to breastfeeding periods, while employment contracts (if flexible working arrangements are to be a permanent or long-term) may need to be amended (and as above, this will require employee consent).
About the author
Aoife is a senior associate in A&L Goodbody’s Employment team, specialising in the areas of employment and work health and safety law. Her practice is comprised of both contentious and non-contentious work.
She advises clients on all aspects of employment law including; conducting new hire and termination negotiations, advising on disciplinary/grievance matters and workplace investigations, advising on employment aspects of corporate transactions, defending claims for unfair dismissal, discrimination and injunction applications and advising on employment issues arising in regulated industries. Aoife also assists clients with their work health and safety obligations, providing advice and guidance on employer duties, assessing policies/procedures for statutory compliance, advising on and responding to regulatory notices, requests and investigations, defence of individual and corporate prosecutions, and advising on work health and safety aspects of corporate transactions.
