Requirement to have a Remote Working Policy

The Bill will require that all workplaces have a written statement which sets out the company’s Remote Working Policy, specifying the manner in which remote working requests are managed, the time frame within which decisions will be made and the specific conditions which will apply to remote working generally within the organisation.
The Policy must be brought to the attention of employees on commencement of employment and thereafter at least annually or when amended. Importantly, the General Scheme provides that it will be an offence for an employer to fail, without reasonable cause, to bring its Remote Working Policy to the attention of its employees. The offence will be liable on summary conviction to a class C fine (maximum fine of €2,500). However, it will be a defence for the employer to prove that it exercised due diligence and took reasonable precautions to ensure that the Bill was complied with.

Submitting a request

An employee must have 26 weeks’ continuous service with his/her employer to be eligible to submit a request for remote working under the Bill. When submitting a request to work remotely, the employee will be required to give notice in writing of the full details of the proposal to work remotely to his or her employer, including but not limited to:

• the proposed remote working location;
• the proposed start date for the remote working arrangement;
• the proposed number, and timing, of working days to be worked remotely;
• if the employee made a previous request to the employer under this Act and the date of the most recent previous request; and
• a self-assessment of the suitability of the proposed remote working locations regarding specific requirements for carrying out the job such as data protection and confidentiality, minimum levels of internet connectivity, ergonomic suitability of proposed workspace and any equipment or furniture requirements.

The General Scheme provides that an employer may require its employees to use a precedent form or template to make a request. However, if the employer has such a requirement, it must be reflected in the employer’s Remote Working Policy. If requested in writing by the employer, the employee must also:

• furnish to the employer such further particulars and evidence relating to the request; and
• meet and discuss the request with the employer during the employee’s normal working time.

Requirement to respond to a request

Having received a remote working request, there will be an obligation on an employer, having consulted the employee and/or the trade union, to return a decision indicating whether the request for remote working is wholly or partially approved or declined.
If agreeing to the request, the employer must confirm this in writing. The format of this confirmation must include but is not limited to:

• the exact details of the proposed remote working arrangement;
• the proposed start date for arrangement;
• where approval is for a trial or temporary period, the proposed end date;
• where is it is to be for an indefinite duration, details of any ongoing review requirement; and
• details of any equipment to be provided by the employer or allowances payable to the employee to cover costs associated with remote working.

Where the employer is unable to agree to the request but makes a counter-offer of an alternative remote working arrangement, the employee must agree to that offer, or reject the offer stating their reasons for so doing, in writing within one month of receipt of the employer’s counter offer.

Business grounds for declining a request

Having given the application due consideration, the employer may decline a request for remote working where satisfied that, in its view, that the request is not suitable on business grounds. The General Scheme sets out the following non-exhaustive list of business grounds:

• the nature of the work not allowing for the work to be done remotely;
• cannot reorganise work among existing staff;
• potential negative impact on quality;
• potential negative impact on performance;
• planned structural changes;
• burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business;
• concerns re the protection of business confidentiality or intellectual property;
• concerns re the suitability of the proposed workspace on health and safety grounds;
• concerns re the suitability of the proposed workspace on data protection grounds;
• concerns re the internet connectivity of the proposed remote working location;
• inordinate distance between the proposed remote location and on-site location;
• if the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement;
• ongoing or recently concluded formal disciplinary processes.

An employer must return a decision within a reasonable time period but in any case within a maximum of 12 weeks from receipt of the request and this time period must be specified in the Remote Working Policy.
The General Scheme provides that an employee will have to wait a period of 12 months from the final decision of the employer to submit another request, provided the employee remains in the same role. If an employee moves to a new role within the company, he/she may submit a fresh request.

Withdrawing a request

An employee may withdraw a request for remote working in writing or be deemed to have withdrawn the request where he/she fails to provide additional documentation sought by the employer or fails to comply with an invitation from the employer for meeting or discussion of the request. Where an employee withdraws a request, another application can be submitted after 30 days from the date that the employer confirms the withdrawal of the initial request.

Appeal to the Workplace Relations Commission

There will be a right of appeal to the Workplace Relations Commission where an employer has failed to return a decision on a request, to provide notice of the grounds for refusal of a request for remote working or to satisfy the notification requirements on withdrawing requests. However, the employee cannot take a claim to the WRC until at least two weeks after the commencement of an internal appeal process, as provided for within the remote working policy, the contract of employment or a collective agreement.
The Explanatory Memorandum states that the right of appeal to the WRC for failure to provide notice of the grounds for refusal “is not intended to extend to a right to complain in respect of the substance or merits of an Employer’s decision to decline a request… The right to complain only extends to a failure to effect notice of the reasons grounding that declination”. However, the Minister for Enterprise, Trade and Employment, Leo Varadkar TD, speaking after the publication of the General Scheme cautioned that this document was the General Scheme, and therefore subject to change, and not the final Bill. He indicated that the right of appeal to the WRC would not be limited to procedural grounds only but that an employer, in refusing a request to work remotely, would need to provide a valid ground for refusal, the validity of which ground could be challenged before the WRC.

Anti-penalisation provision

The General Scheme contains an anti-penalisation provision designed to protect employees who propose to exercise or have exercised their rights under the Bill. Penalisation includes:

• suspension, lay-off, dismissal or the threat thereof;
• demotion or loss of opportunity for promotion;
• an unfavourable change in conditions of employment of the employee, transfer of duties, change of location of place of work, reduction in wages or change in working hours;
• imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty); and
• coercion or intimidation.

The WRC may find that the complaint was or was not well founded. Where the complaint is well founded, the WRC may award compensation (not exceeding four weeks’ remuneration) and, where necessary, direct the employer to return a decision or provide the grounds of refusal within four weeks. The decision of the WRC may be appealed to the Labour Court.

Code of Practice

The Bill provides that the Minister for Enterprise, Trade and Employment may require the WRC to prepare a Code of Practice on the right to request remote working. The main purpose of the Code would be to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of the statutory right to request remote working, to aid with the implementation of the new legislation, and to advise on the likely features of remote working policy documents. The Explanatory Memorandum makes clear that the WRC may itself decide to prepare such a Code.

Minimum level of protection

The Explanatory Memorandum also explicitly states: “The intention is that the Right to Request Remote Working Act will provide a floor level of protection to all employees and that existing features of arrangements that render remote working requests impossible will be rendered null and void. However, it is not intended that existing more favourable remote or flexible working arrangements will be undermined by this legislation.”

Conclusion

We recommend that all employers put in place a remote working policy. If you already have a remote working policy in place, we recommend that you review the policy in light of the requirements which will be introduced by this legislation. While the General Scheme provides a very good indication of the parameters of the Bill, there may yet be some important changes to the scheme before it becomes law. Therefore, you should consider keeping your policy under review over the coming months.