New guidance for workplaces has been published to reflect the recent relaxation of most public health measures. The Transitional Protocol eases many requirements on businesses but says good practices should be maintained.

The Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar TD, as part of his plans to make better terms and conditions for workers a legacy of the pandemic, also published details of a new law which, if passed by the Oireachtas, will give employees the right to request remote working,

The Tánaiste stated, “Up until now, remote and home working has been imposed on a lot of people due to the public health restrictions. Now that they have been lifted, I want it to be a choice. I want workers to be able to work from home or remotely or hybrid if they want to. So long as the business get done and services are provided, employers should facilitate it.”

The Government announced the relaxation of most public health measures and following engagement with business and unions, it published its latest guidance for workplaces with the requirement to work from home now gone. A phased return to the workplace is anticipated.

The Right to Request Remote Working Bill 2021 (and the Scheme proposed pursuant to it) provides a legal framework around which requesting, approving, or refusing a request for remote work can be based. If the Bill is enacted, all workplaces will have to have a written statement which sets out the company’s Remote Working Policy, specifying the way remote working requests are managed and the conditions which will apply to remote working generally within the organisation.

Under the scheme, if such a request is refused and where the employer has diligently completed the assessment process and any appeal has been heard, the employee will have to wait a period of 12 months to submit another request, provided they are in the same role. If an employee moves to a new role within the company, they may submit a fresh request.

The new proposed law provides for a time-limit for an employer to return a decision in relation to a request from an employee. The employer can set out their own specific time limit, but it must not be more than 12 weeks. An employee will be eligible to submit a request once they have worked for their employer for a period of six months. However, an employer is free to offer remote work from day one if desired.

There will be a right of appeal to the Workplace Relations Commission where an employer has failed to respond to a request or to provide any reasonable grounds for refusal of a request for remote working. There are also protections for employees from penalisation for having exercised their entitlement to request remote working.

Employers may refuse to grant an employee’s right to work remotely on certain grounds under the draft legislation published last Tuesday. They include that the nature of the work does not allow for the work to be done remotely; that the work cannot be reorganised among existing staff, and that it would have a potential negative impact on either work quality or performance. Planned structural changes, the burden of additional costs and concern for the protection of business confidentiality or intellectual property are other grounds listed. Concerns over the suitability of the proposed workspace on health and safety grounds or on data protection grounds are also cited as grounds.

Employers can also refuse to grant remote working if there are concerns about internet connectivity of the proposed remote working location or if there is an inordinate distance between the proposed remote location and on-site location. They can also refuse if the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement. The request can be refused if there is an ongoing or recently concluded formal disciplinary processes.

Under the proposed legislation an appeal to a refusal to grant a request for remote working can be brought internally within the workplace and to the Workplace Relations Commission or both. An employee should obviously exhaust the internal avenue for appeal before lodging a compliant with the WRC.

The issue is due to be debated before an Oireachtas committee on Wednesday February 9^th and so it is not yet certain if the scheme and Bill as drafted will be enacted as representations from Employee Unions are expected to be vociferous.

NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.