by Patrick Walshe, Partner in the Employment and Pensions group at Philip Lee
Covid has transformed our lives in many ways – and for employers, the changes ushered in by remote working are among the most significant. The subject is constantly discussed in the media, both here and internationally, but there’s still a great deal of uncertainty. What is an employer allowed to do? Will we be returning to physical offices en masse? Where is all of this going?
A good starting-point is the Government’s National Remote Working Strategy, published in January 2021. Based upon the Strategy at least, it’s apparent that the current administration views remote working as here to stay. The Tánaiste launched a public consultation on remote working in April, which concluded in May. It’s now the Government’s intention to implement legislation in relation to remote working before the end of this year.
Data obtained in the course of the pandemic is both interesting and instructive. NUI Galway and the Whitaker Institute, in particular, have conducted a number of surveys of Irish employers and employees in the last 18 months. The most recent, released in May this year, demonstrates that an overwhelming majority of the workforce – 95% – want to work remotely at least part of the time (indeed, 85% of employees would like to work remotely either daily, or several times a week).
The study involved over 6000 respondents and the results are broadly similar to other studies carried out in Ireland and internationally. Another recent survey of interest is one carried out by IBEC. Also released in May 2021, it demonstrates that 80% of the employers surveyed intend to allow for remote working, with only 15% expecting all staff to return fully on-site.
Both of these would suggest that employers and employees alike are prepared to embrace remote working. However there are still many unanswered questions – including how, exactly, the forthcoming legislation will work in practice – and what an employee can do when faced with a recalcitrant employer?
It doesn’t appear that the legislation will contain an undisputed right to work remotely – the Government has at all times couched its proposals in terms of a right to request remote working. The key question is what options will be available to an employee who is refused and doesn’t want to accept that. There has been some speculation that the Government will legislate for an application to the Workplace Relations Commission – although it isn’t clear what, if anything, the WRC will be empowered to do.
Possibly the furthest the Government will go is attempt to create a culture. One key question is whether the legislation will oblige employers to justify a refusal to allow a particular employee to work remotely. It’s obviously easy to deny a request without giving reasons – it may be more difficult to do so if a rationale has to be provided to the employee who made the request.
In this context, it’s interesting to consider the example of flexible working. A right to request flexible working will become law in 2022 in line with EU legislation. Employers will be compelled to justify refusal – if a similar provision is enacted for remote working, it could certainly make it more difficult to refuse. As an aside, flexible and remote working are distinct. Flexible working involves changes to working hours/working conditions, while remote working is simply performing the job on existing terms and conditions but doing so away from the physical workplace.
Some commentary suggests that employers are reluctant to allow remote working because they’re apprehensive that it will lead to a drop in productivity. Interestingly, the evidence to date suggests that this may not be the case: a 2020 survey in the UK, for example, shows that 67% of employers experienced either a positive impact or no impact at all on productivity. Other surveys have reached similar conclusions.
Productivity aside, employers probably have relatively little to fear from remote working, at least as far as substantive employment law is concerned. Employers need to perform some additional tasks when it comes to ensuring health and safety, for example, and it’s also prudent to pay attention to confidentiality, IT and data protection issues. Those aside, for the most part the relationship is not significantly affected and can continue as normal.
All told, it’s likely that there is now an irresistible trend towards some form of remote working. The legislation, once enacted, will assist employers in deciding what to do – although a prudent employer will recognise that remote working is likely here to stay, and plan accordingly. Now is the time to start thinking about the needs of your business – and the time to consider whether you’ll be able to justify refusing remote working. Even if the legislation doesn’t create an untrammelled right, employees may very well vote with their feet – and there’s very little an employer can do about that.
Article first published in the Business Post, September 2021..
About the author
Patrick Walshe is a partner in the employment and pensions group at Philip Lee.
Patrick’s experience in non-contentious employment law ranges from drafting contracts of employment and employment policies to advising on industrial relations disputes. He also advises employment law clients in relation to health and safety issues, transfers of undertakings, equality issues and independent contractor arrangements.
Patrick’s experience in contentious employment law runs from prosecuting and defending Employment Appeals Tribunal claims, participating in Labour Relations Commission conciliations to litigating cases in the courts. He also advises in relation to bullying and harassment claims, internal disciplinary investigations and unfair/wrongful dismissal claims
