Proposed introduction of Right to request Remote Working

Introduction

The Right to Request Remote Working Bill 2022 establishes a requirement for a company to put in place a remote working policy, and ensure this is accessible to all employees. The Bill proposes criminal sanctions will follow for failure to put a remote working policy in place. The Bill also establishes protections for employees against penalisation.

At a high level, the Bill provides for:

• Requests & Service Requirements: An employee can apply for remote working capabilities where the employee has been in continuous service with the employer for 26 weeks (6 months).
• Response time for the request: the employer will be required to reply as soon as possible but within 3 months (12 weeks) confirming whether the request is wholly/partially approved, or denied.
• Reapplication Timelines: If an employee’s request is rejected, he/she cannot make a further application for a 12 month period.  If an employee or employer abandons/withdraws the application prior to approval, a second application can be made after 3 months.
• Template Forms: The employee must submit, in writing, certain details of their proposal to remotely work (such as start dates, location, number of days they wish to remotely work). It is suggested the employer rolls out a template document to streamline the application process.
• Meeting to discuss request: Employers will be required to meet with the employee to discuss their remote working request.
• Confirmation Document: The employer will be required to prepare a confirmation document which sets out all details of the proposed arrangement, including whether it is agreed or if it is agreed on a trial basis. Where an employer cannot agree to the employee’s request but has an alternative proposal, employers will be required to produce a confirmation document containing those details. The employee will have one month to respond.
• Reasons for Refusal of Request: The Bill provides a non-exhaustive list of 13 “business grounds” on which an employer can rely on to reject or refuse an application.  These reasons include suitability of the role to be conducted remotely, burden of additional financial costs on the employer’s business, concerns regarding internet connectivity at the remote location, health and safety grounds, and distance of remote location to the employer’s location. The employer must give due consideration to the application to rely on those grounds. It is open to the employer to use other grounds not contained on this list, provided they can justify same. This is a subjective assessment based on business needs.
• Appeal: The Bill provides for an appeal mechanism against the decision issued by the employer in the first instance through the employers remote working policy, with a further right of appeal to the WRC.

Next steps to consider

Whilst the Bill is currently in draft form, it has already received much media attention and debate over its current draft format. Commentators have speculated the draft Bill did not go as far as was anticipated. It is very likely, there will be significant changes made before its enactment.

Employers may consider taking steps to prepare a draft policy or update its existing one to ensure that policy incorporates these principles, which can be finalised and adopted once the legislation comes into effect.

While due care has been taken in drafting this article, it should not be construed as legal advice.

For further information on remote working, please contact of the following members of our employment law team: Elaine O’Flynn, Sarah Coughlan, Judith Curtin or Shane Crossan.