Remote working: New law making swift progress

Background

In January 2021, the Irish government published a strategy for national remote working, called "Making Remote Work". The strategy outlined a commitment to introduce legislation which will provide a framework around which employees can request remote working. 

In January 2022, the general scheme of the Right to Request Remote Working Bill 2022 (the General Scheme) was published. It quickly came under significant criticism in respect of certain aspects, such as the "cumbersome" grounds for refusal of a request. In July 2022, the Joint Committee on Enterprise, Trade and Employment published a report on its pre-legislative scrutiny of the Bill noting that much of the public commentary on the General Scheme had "not been positive".  

In a surprising move in November 2022, it was announced that the right to request remote working legislation would be fast-tracked by way of integrating it into the Work Life Balance and Miscellaneous Provisions Bill 2022 (the Bill) which at that time was already making its way through the legislative process. 

A new version of the Bill has recently been published which includes a new part to deal with requests for remote work arrangements. 

What is new? 

In the new legislation there is much more focus placed on a Code of Practice, which is to be developed by the Workplace Relations Commission (WRC). The Code of Practice will be established on a statutory footing and will include guidance for employers and employees on their obligations regarding compliance.

Some further notable differences are as follows:

  • Under the General Scheme an employee had to have six months' service before making a remote working request. Now an employee must have six months' service before the proposed start date of the arrangement, giving the employer at least eight weeks' notice. Notwithstanding this reduction, having a length of service requirement has come under criticism, particularly in light of fact that in the UK the government recently confirmed that the right to request flexible working will apply from the first day of employment.
  • The list of "cumbersome" grounds for refusal has now been removed entirely and replaced with a requirement for an employer, when considering a request, to have regard to its needs, the employee's needs and the requirements of the Code of Practice.  
  • The General Scheme contained a requirement for all employers to have a remote working policy, with it being a criminal offence not to have one. There is no such requirement in the new legislation. However we would strongly recommend that employers have a policy in place where remote working is feasible in the organisation.  
  • The General Scheme contained a requirement than an employee requesting a remote working arrangement had to include a self-assessment of the proposed remote work location. The new requirement is that the employee must provide 'details of the proposed remote working location' and information, as may be specified in the Code of Practice, on the suitability of the proposed remote working location.  
  • Under the General Scheme an employer had up to 12 weeks to respond to a request; this is now four weeks with an option to extend by a further period not exceeding eight weeks. 
  • Under the General Scheme an employee could only make one request per year. This limit is not in the new legislation. 

Similar to the position under the General Scheme, the WRC will not be able to assess the merits of an employer's decision, which has been reached following the considerations outlined in the legislation. 

Next steps

The Bill is currently before the Seanad, having passed through the Dáil, and is at an advanced stage of the legislative process. We will provide further updates on this important legislation as it progresses. 

Given that many employers have already rolled out remote and hybrid working arrangements in response to their needs, employees' needs and labour market pressure, it remains to be seen how useful the new law on making remote working requests will be in practice.  

For further information in relation to this topic, please contact Triona Sugrue, Knowledge Lawyer, or any member of ALG's Employment team. 

Date published: 20 December 2022