The Department of Enterprise, Trade and Employment has published "Guidance for Working Remotely" ("Guidance"), a resource for employers on remote working solutions.
The Health & Safety Authority ("HSA") previously published guidance on remote working, however this was primarily focused on the practicalities of short term homeworking necessitated by the Government restrictions imposed due to COVID-19. The Department's Guidance reflects a longer term plan to facilitate remote working. The timing of the Guidance is particularly apt. It appears likely that public health authorities will continue to recommend a phased or staggered return to the office, which will necessitate some form of remote working. In addition, further legislative measures on remote working are expected in the next twelve months.
Guidance for Working Remotely
This Guidance includes a Remote Working Checklist for Employers which covers the key areas of consideration for remote working and can be accessed here. It includes helpful links on the following:
- health and safety, including returning to the office, setting up on ergonomic workplace, insurance and handling work-related stress of remote working employees;
- the effect on employees' terms and conditions of employment, including working time compliance;
- data protection and cyber security while remote working;
- employer obligations under the Employment Equality Acts 1998 to 2021; and
- the importance of providing training to employees working remotely and for managers in managing remote working teams.
Right to Request Remote Working
The longer term focus of this Guidance is in line with the Tánaiste's stated intention to legislate for a right to request remote working later this year. It is important to note that the upcoming legislation will provide for a right to request remote working only. Employees will not automatically be entitled to work remotely under this new legislation. However, it is likely that employers will have an obligation to consider an employee's request and to provide a reasoned response if declining the request. Discussing the proposed legislation, the Tánaiste explicitly recognised that remote working does not work for every employee or organisation and stated that a balanced approach will be taken in the legislation.
Right to Request Flexible Working Arrangements
The EU Directive on Work Life Balance for Parents and Carers ("Directive") is required to be implemented on or before August 2022. The Directive provides for a right to request flexible working arrangements for carers and parents of children up to eight years old. Flexible working arrangements are much broader than remote working. Under the Directive, affected employees have a right to request remote working but also flexible working schedules or a reduction in working hours. Employers should be able to decide whether to accept or refuse a worker's request for flexible working. The duration of the flexible working arrangements requested and the employers' resources and operational capacity to offer such arrangements can be taken into consideration when considering such requests.
It appears from the Government’s Making Remote Work strategy document published earlier this year that the legislation providing for a right to request remote working will not include a broader right to request flexible working arrangements derived from the Directive. Instead, separate preparations for implementing the Directive will be led by the Department of Children, Equality, Disability, Integration and Youth so further legislation is expected.
Health & Safety when Working Remotely
Under the Safety, Health & Welfare at Work Acts 2005 to 2014, responsibility for health and safety rests with the employer whether or not work is being done remotely. In response to the increasing popularity of remote working across Europe, two Directives on health and safety are being reviewed:
- the EU Directive on the Minimum Safety and Health Requirements for the Workplace; and
- the EU Directive on Minimum Safety and Health Requirements for Work with Display Screen Equipment.
Depending on the outcome of these reviews, it is likely that EU and Irish health and safety legislation and guidelines will be enhanced to support long-term remote working.
Key Takeaways for Employers
- waiting until legislation is introduced could impact recruitment and retention as staff contemplate a return to office working;
- prepare a hybrid/agile working policy which covers the following key points:
- a right to modify, amend and/or withdraw the policy at the employer's discretion;
- if the policy is being implemented on a trial basis, this should be made clear in the policy;
- a right to request remote working and other flexible working arrangements;
- a set procedure for requesting remote work, including the criteria that will be considered by management in deciding whether to grant the request, and an internal appeals procedure;
- confirmation that the employer may refuse requests for remote or flexible working and examples of reasons why the employer may refuse any such request;
- the employer's right to withdraw, reduce or suspend remote or flexible working arrangements, and clarity regarding the circumstances in which this could happen (e.g. under-performance);
- health and safety and data protection, and cyber security requirements for remote workers, including links to relevant policies; and
- consistency with the Code of Practice on the Right to Disconnect and/or the employer's right to disconnect policy.
- consider any requests for remote working by employees in accordance with this policy. If refusing any employee’s request, provide an objective response setting out the business' reasons why the employee’s request cannot be facilitated at that time and give them a right to appeal this decision; and
- to minimise the risks of discrimination, consideration should be given as to whether employees who are permitted to work remotely and/or flexibly can be enabled to have a consistent working experience when compared to their office-based colleagues.