Irish Region

Introduction

The Government has published its “Making Remote Work – National Remote Work Strategy” (the “Strategy”) which provides an indicative roadmap and welcome guidance for both employers and employees on the future of remote working in Ireland.  The current global pandemic resulted in a dramatic increase in the prevalence of remote working within a number of days in March 2020.  It is clear that remote working will remain a feature of many workplaces in the longer-term when COVID-19 restrictions are removed, and if organisations can continue to operate using remote working practices as part of their business model, it is likely to be of significant benefit to them as the landscape of the modern workplace continues to rapidly evolve. 

The Strategy sets out a range of actions and commitments from Government over the course of 2021 including legislating for the right to request remote working, developing a code of practice for the right to disconnect, ensuring 20 percent of public sector employment consists of remote and home working, investing in a network of remote working hubs, reviewing the tax aspects of remote working in Budget 2022, and a possible acceleration of the National Broadband Plan.

Benefits and Challenges of Remote Working

Both employers and employees can benefit from the many social, economic and environmental benefits associated with remote working, as detailed in the Strategy.  These benefits include employee retention, promoting regional development, increased labour market participation, an improvement in work/life balance and family well-being, cost-efficiencies for businesses and reduced commuting, pollution and carbon emissions.  Remote working can assist with ensuring our workplaces are more diverse and inclusive, for example, by enabling greater participation for people with disabilities in the workplace. The flexibility associated with remote working, such as removing a commute, along with the change in mindset brought about by the increase in remote working, may also assist those with caring responsibilities in the home to participate in the workforce.

However, the Strategy also details the potential negative consequences of remote working.  For employees, this can include mental health difficulties, feelings of isolation and loneliness, increased stress, difficulty ‘switching off’ from work and increased working hours.  Many employers have noted that remote working “does not easily support creativity, group dynamics, shared ownership and collegiality.” Of course, some of these challenges are unique to the current global pandemic.  Nevertheless, a balanced approach is required that will ensure remote working is a ‘win-win’ for employers and employees alike, and one of the main purposes of the Strategy is to facilitate an increase in the adoption of remote working “in a way that reaps the many benefits and mitigates negative side-effects.”

Right to Request

Of particular interest for employers will be the proposed right to request remote working, which is to be legislated for in Quarter 3 of 2021. There is no further detail set out in the Strategy in terms of the proposed obligations on employers to consider and grant such requests, and the text of the legislation will be eagerly awaited.  There is currently no legislative framework dealing with the right to request remote working arrangements, and it is hoped that the proposed legislation will provide employers with clarity as to their obligations.  It is likely that the right to request remote working will be similar to the right to request flexible working arrangements when returning from parental leave, where the employer must consider the request and provide a response within a defined period, but there is no obligation to grant the request.

Right to Disconnect

“Since the original publication of this briefing, the Code of Practice for Employers and Employees on the Right to Disconnect (the “Code”) came into effect on 1 April 2021. The Code defines the “right to disconnect” as “an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours.” There are three main employee rights enshrined within the Code as follows: (i) the right not to routinely work outside normal working hours; (ii) the right to not be penalised for refusing to work outside of normal working hours; and (iii) the duty to respect another person’s right to disconnect. While an employer’s failure to follow the Code is not an offence, the Code is admissible in evidence in proceedings before the Courts, the Labour Court or the Workplace Relations Commission and the Code expressly provides that employers should implement a Right to Disconnect Policy. For further information on the Code, please refer to our briefing [insert link to briefing.]

In a remote working environment, employers have the same obligations to maintain working time records, and they need to ensure they have the requisite processes and technology in place to do this and that staff understand what is required of them.  Training initiatives and wellness programmes can also be a way of reminding employees of the importance of taking rest breaks and ensuring they are aware of the right to disconnect.”

What does this mean for employers?

The Strategy encourages employers to review their current business models to examine whether remote working is suitable for their workforce.  As we have witnessed in practice, remote working is not suitable for all roles and industries, particularly those which require employees to be physically present on-site and in sectors such as construction, manufacturing and healthcare.  However, it would be useful for organisations in all sectors to review their current processes, and engage in open dialogue with their workforce, to determine whether remote working can be facilitated for roles that traditionally required a physical presence in the workplace, perhaps through the use of technology and virtual telecommunication platforms.  As noted by the Tánaiste in his foreword to the Strategy, many organisations are likely to adopt a hybrid or blended approach to remote working, whereby part of employees’ working time will be spent at the organisation’s premises, with employees working remotely for the remainder of their contracted working time.

A key action for employers detailed in the Strategy is the importance of having a written remote working policy in place which sets out clear and objective criteria for requesting a remote working arrangement, includes an appeals process, and ensures that adequate training is provided to all employees.  Many organisations will have already implemented a remote working policy in 2020, and these policies should now be reviewed and updated in line with the Strategy.  Organisations that have yet to implement a remote working policy should do so without delay.

Employers should also ensure that there are support mechanisms and processes in place so that employees who are working remotely can maintain their visibility and have equal access training, development and promotion opportunities.  This is particularly important in the context of the Employment Equality Acts.

In addition, it is important to remember that where employees are working remotely, the terms and conditions of the employment contract continue in the same way as they would if the employee was working on the employer’s premises.  Remote working arrangements may impact employers’ obligations in relation to working time, health and safety, confidentiality and data privacy, while also having implications on insurance and taxation. It will be important for employers to review the wider effects and consequences of remote working on the employment relationship and ensure that their contractual documents, policies and procedures are fit for purpose in a virtual, remote working environment.  The publication of the Strategy is a significant and timely development, providing welcome guidance and a comprehensive Government strategy, as it becomes increasingly clear that remote working will continue to be a feature of the modern workplace.