Looking for a positive in a pandemic? The foreword for the recently published National Remote Work Strategy, acknowledges that the seismic shift in Ireland to remote working in March 2020 "might have taken decades if it had been planned. Instead it took days."
Our Employment Group considers the key aspects of the Strategy which reflect the Government's intention to "ensure remote working is a permanent feature in the Irish workforce" and not simply a feature of life in a pandemic.
The Strategy identifies a number of key actions to be taken by the Government in order to promote and facilitate remote working in Ireland, including:
- mandating that home and remote working should be the norm for 20% of the public sector;
- investing in remote working hubs across Ireland;
- accelerating the provision of high-speed broadband throughout the country; and
- reviewing tax arrangements for remote working and assessing the merits of further enhancement in Budget 2022.
Creating the Right Environment
Central to the Strategy is the creation of an environment conducive to remote working. The Strategy identifies that this environment can be created through the enhancement of employee rights, such as:
the right to
The Strategy envisages the introduction of a code of practice establishing the right of an employee to disconnect. The Workplace Relations Commission recently launched a public consultation in connection with the development of this code, which will establish best practices regarding the right of employees to formally disengage from work outside of normal working time hours. The code is expected in Q1 of 2021. See our client briefing "Employer Alert: Right to Disconnect on the Horizon" here; and
the right to request to
The Government intends to legislate for an employee's right to request to work remotely. Currently in Ireland, all employees can request to remote work but there is no legal framework around such a request. This is clearly a separate issue from the ongoing public health advice that all those that can work remotely, should do so and should be supported in this by their employer. The anticipated legislation, which is expected in Q3 of 2021, will provide a legal framework around which requests from employees to work remotely can be addressed, providing clarity for employers and employees alike.
The parameters of a right to request to work remotely remain to be seen. However in the Strategy the concept is linked to the August 2019 Work-Life Balance Directive1, which provides for the right of carers and working parents of children up to eight years old to request flexible working arrangements. "Flexible working arrangements" is broader than just remote working and includes flexible working schedules and a reduction in working hours. Significantly, the Directive provides that Member States can limit the duration of flexible working arrangements and that employers should be able to take into account, "the duration of the flexible working arrangements requested and the employers' resources and operational capacity to offer such arrangements." Further, the employer "should be able to decide whether to accept or refuse a worker's request".
It is unlikely that the legislation will provide for an unequivocal right to work remotely and it is possible that the above conditions will be a feature of any employee right to request to work remotely that is introduced in Ireland.
The Strategy identifies the role of enhanced health and safety legislation in creating an environment that is supportive of long-term remote working. Two fundamental EU directives are currently under review by the EU Advisory Committee on Safety and Health at Work, namely the:
- Workplace Directive which establishes the general principles to prevent and protect employees against occupational accidents and diseases; and
- Directive on Display Screen Equipment which establishes the minimum health and safety requirements for working with display screen equipment.
The Health and Safety Authority is participating in this review on behalf of Ireland, and it is possible that there are changes on the horizon for international health and safety legislation.
Agile Policy and Guidance Framework
The Strategy addresses the need for remote working to be underpinned by an agile policy and guidance framework.
To assist with this, the Department of Enterprise, Trade and Employment has developed a webpage (available here) on remote work guidance that provides information and advice for those seeking to engage with remote work solutions. To provide employers with a quick way to navigate the adoption of remote working arrangements, the webpage also provides a checklist (available here) for working remotely, which addresses a wide range of issues arising from the implementation of a remote working policy, including employment conditions, mental health and cybersecurity issues.
Limitations of Remote Working
While the shift to remote working can have huge benefits, the Strategy also acknowledges the potential negative impacts of long-term remote working. It advises that employers should be mindful of any potential negative impacts of remote work and actively take steps to mitigate any negative unintended effects.
For example, while the shift to remote working can have huge benefits for people with disabilities in that it removes mobility, transport and physical access barriers, the reduced visibility of workers can impact on career progression. Therefore, the Strategy notes that employees "with disabilities that are capable and want to work on the employer's premises must enjoy the same right as persons without disabilities and allowances should be continued for those who wish to attend the workplace."
Furthermore, the question of remote working and productivity remains unanswered. The Strategy notes that it is difficult to measure the impact of remote working on productivity during COVID-19 as there are many other factors at play, namely lack of childcare, increased sick leave and caring obligations, and infrastructure deficit given the suddenness for many businesses of the implementation of mass remote working arrangements. As remote working becomes a permanent feature of working life, an accurate impact on productivity will need to be determined.
For many employees, the Strategy signals a welcome acceleration of remote working in becoming a permanent fixture of the Irish workforce, with some of the above changes being imminent.
Employers are advised to keep their eye on these key developments in order to be prepared for a smooth transition to long-term remote working arrangements and to fully reap the benefits of an increased remote workforce.
The authors would like to thank Mary Heavey for her contribution to this article.
1. Member States have until 2022 to implement the Directive.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.