by Joanne Hyde, Partner and Head of the Employment Law Unit and Head of Commercial, Eversheds Sutherland Ireland
Last month the Government published the Draft Scheme of the Right to Request Remote Working Bill, with the legislation envisaged to come into effect by July 2022. The legislation will provide a legal framework for workers to request remote work and reflects the Government’s stated intention to make remote working a permanent feature of Irish workplaces. However, the Draft Scheme has been met with disappointment and, indeed, scepticism and it is worth examining what this new law may mean for both employers and employees.
As drafted, the new law will give all employees with more than 26 weeks’ service the right to request remote working. An employee cannot submit a new request until after 12 months have elapsed unless they have moved to a substantially different role. The Draft Scheme envisages a level of formality in making and responding to the request, including the employee themselves dong a self-assessment of the suitability of the remote working location under a number of different headings. The employer will have 12 weeks to issue a decision in writing and can propose that the remote working arrangement be on a trial or temporary basis or be subject to ongoing review.
A lot of focus has been placed on the non-exhaustive list of thirteen potential reasons on which an employer may refuse a request to remote work. The Draft Scheme states that the assessment is “wholly subjective” and based on the employer’s own “subjective assessment of their business needs”. It states that the employer has “full discretion to decline” and all that is required is that the decision is grounded in an assessment of business needs rather than on spurious or arbitrary grounds.
There is also limited scope for legal redress for a disappointed employee. An employee can bring a complaint to the Workplace Relations Commission where an employer has failed to adhere to the procedural aspects of the legislation, either by failing to give a decision or by failing to provide grounds for refusing the request. However, the right to make a complaint to the WRC does not extend to a right to complain about the “substance or merits” of the employer’s decision.
This combination of discretion to decline a request as long as it is based on a business ground and the absence of a legal remedy to challenge the refusal has led to criticism of the proposed legislation on the basis that it offers employees little new. By contrast, the longstanding UK legislation giving a right to request flexible working allows an employer to refuse the request on only one of eight specified grounds and the refusal must be objectively justified and not discriminatory.
So, inevitably, the question is being asked as to what, if any, legal remedy might be open to an employee who feels that their request to work remotely has been unfairly refused. It is likely that legal claims may be grounded in other legislation. For example, we have already seen successful cases of constructive unfair dismissal where employees were not fairly considered for remote working during the pandemic. Refusals to consider remote working requests under the new regime may result in similar claims. Likewise, the Employment Equality Acts may become relevant. Those Acts prohibit direct or indirect discrimination on the grounds of nine protected characteristics, including gender, family status and disability. We can envisage scenarios where remote working may be requested on the grounds of a particular family status or circumstance or as accommodation on the basis of a medical condition of the employee or a family member. It is unclear as to how employers are to balance requests which may be formulated in the context of a protected characteristic and this is likely to be the basis of equality litigation.
The one clear piece of advice to employers in the meantime is to begin developing a clear, written policy on remote working and how requests will considered. Unusually, the Draft Scheme proposes that the failure to have such a policy will a criminal offence with a fine of up to €2,500. While a Code of Practice is promised on what should be in a policy, many employers are already putting their policies in place. They are reflecting on their own business needs and how to ensure fairness across the employee population so as to deal consistently with requests and avoid a situation where early requesters are granted fully remote working to the detriment of those who make later requests. Organisations are also struggling with how to manage remote and hybrid workforces so as to reduce complaints of bias against remote workers and a two speed workforce, which will itself lead to employee relations issues and legal claims.
So is it a question of a revolution in the workplace or the more things change, the more they stay the same? Only time will tell.
About the author
Joanne Hyde is a Partner and Head of Employment Law at Eversheds Sutherland Ireland. She is also Head of the Commerical department. Joanne is a pragmatic and business focused employment lawyer. Her experience as in-house employment lawyer for Intel Corporation, one of Ireland’s leading multi-national employers has given her a strong insight into the HR concerns and complexities facing clients. In addition, Joanne has many years’ experience advising both international and indigenous clients on a wide range of employment and industrial relations issues. Her comprehensive experience includes advising on employment law challenges arising from commercial transactions, employment disputes and litigation as well as providing strategic and proactive advice on HR issues.
