Remote Work
Draft Scheme of the Right to Request Remote Work Bill 2022
As part of the government's ambition to make remote working a permanent aspect of Ireland's workforce, the Draft Scheme of the Right to Request Remote Work Bill 2022 (Bill) was published on January 25, 2022.
The legislation, which is expected to be amended, is expected to be published by Easter and to go into effect sometime this summer.
The Workplace Relations Commission will also release a Code of Practice.
Given recent government guidance that workers can begin returning to work, and the likelihood that employers will receive an increase in requests from their employees to work remotely, we have prepared the following note outlining the key features of this eagerly awaited legislation as it is currently drafted, as well as some additional information.
A formal remote working policy must be established and maintained by employers. This should include: (a) how requests are handled; (b) when decisions are made; and (c) any restrictions on remote working within the company.
Every company, regardless of size or industry, must have a Remote Working Policy that is disclosed to all employees.
SERVICE AT A MINIMUM
Before submitting a request for remote work, an employee must have completed at least 26 weeks of continuous service.
Workers with disabilities are expected to have easier access to occupations as a result of this new legislation. However, given the 6-month minimum service requirement, it is unclear how this will extend access and enhance participation in the labor market in practice.
REQUEST FOR WORKING FROM HOME
An employee must notify his or her employer in writing of the elements of the plan, including the following:
(a) Proposed remote working location; (b) Proposed start date for the remote working arrangement;
(c) Proposed number and timing of working days to be worked remotely;
(d) If the employee has made a previous request to the employer, the date of the most recent request should be noted; and
(e) A self-assessment of the suitability of the proposed location, including data protection and confidentiality considerations.
SELF-EVALUATION IS REQUIRED.
The employee must conduct a self-evaluation of the proposed remote workspace's suitability, including a review of data security and confidentiality. This places a significant duty on personnel to educate themselves on data protection and confidentiality rules prior to conducting such an assessment. It's also unclear how much liability the employer will bear in the event of a data breach. There's also no explanation for how employees will determine whether their planned virtual office is ergonomically suitable.
TIME LIMIT FOR EMPLOYER TO MAKE A DECISION
If an employee fails to offer additional information on the plan to their employer within 12 weeks, or fails to meet with their employer to discuss the idea, the employer may consider the request dropped.
Within 12 weeks of receiving the request, the employer must consult with the employee and make a written decision. However, no explanation or insight into what such a consultation may entail is provided.
If the employer agrees to the request, the employee must receive written confirmation that includes the exact details of the arrangement, the proposed start date, confirmation of the trial period (if one exists), details of the review (if it is for an indefinite period), and details of any compensation.
REFUSING TO ACCEPT A REQUEST
A request may be turned down if the plan is unsuitable for business reasons (the Bill gives a list of 13 examples, but this is non-exhaustive list). The following are examples of business grounds:
(a) Work cannot be done remotely;
(b) Potential negative impact on business/service quality;
(c) Concerns about data security and intellectual property confidentiality;
(d) Internet concerns;
(e) Employee is undergoing or has recently completed a formal disciplinary process;
(f) Concerns about the commute between the proposed remote working location and the employer's on-site location.
RIGHT TO APPEAL
An employee may file an appeal for one of three reasons:
(a) The employer failed to respond to a request for a decision within 12 weeks; (b) The employer failed to provide grounds for denial; and (c) The employer failed to comply with notification requirements.
The right to file a complaint with the WRC does not include the right to file a complaint on the substance or merits of an employer's refusal to grant a request. This right is solely applicable to complaints about procedural difficulties.
12-MONTH LIMIT ON SUBMITTING ADDITIONAL REQUEST FOR REMOTE WORK AWARDS IN THE WRC
Employees are not allowed to submit a new remote working request until 12 months have passed since the employer's initial decision or, if an appeal has been filed, 12 months from the date of the appeal's final judgment.
If an employee moves to a new role within the same company, they are not barred from submitting a new request within the 12-month period.
An adjudication officer can award an employee compensation of up to four weeks' pay. Employees have the right to appeal a decision made by an adjudication officer to the Labour Court.
An employer who fails to bring the Remote Working Policy to the attention of its employees is guilty of a crime and faces a class C fine (€2,500) if found guilty on summary conviction.
Before filing a complaint with the WRC, employees must first use the company's internal appeal process (which should be described in the Remote Working Policy). The complaint will be processed through the employer's internal appeal process.
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