13 Reasons Why (Not) - The Disappointing Right to Request Remote Work Bill 2022

13 Reasons Why (Not) - The Disappointing Right to Request Remote Work Bill 2022

By Daniel Mooney, LL.M. (Intellectual Property and Information Technology)

On the 25th of January 2022, Tánaiste Leo Varadkar announced that the much-anticipated Right to Request Remote Work Bill 2022 had been passed by the Cabinet. The Bill, which follows on from the previous Remote Work Strategy from January 2021, was adopted after two years of predominantly mandated remote work for many of the country’s workers. While the proposal has been long-awaited, unfortunately it falls short in a number of ways. This article aims to briefly analyse the Bill’s provisions, showcase its shortcomings, and consider the missed opportunity for meaningful reform of the employment environment in Ireland.

The overall aim of the Bill is to introduce the right to remote work in Ireland. While the Bill’s aim is ambitious, its proposed scheme unfortunately falls short. In attempting to achieve that goal, the Bill allows all workers, who have served at least twenty-six months of continuous service, the right to request remote work. Employers are required to create a remote work policy that sets out the process for requests, the timeframe for decisions, and conditions that apply to the organisation’s remote working.

The Bill provides thirteen reasons why a request may be rejected, including “potential negative impact on quality of business product,” “concerns for the internet connectivity of the proposed remote working location,” and “potential negative impact on performance of employee or other employees”. Clearly, these grounds grant wide discretion to employers, some of which are difficult to define. In particular, the possibility for rejection on “potential” negative impact grounds is vague and overly broad. Alan Eustace, writing in The Irish Times, has further pointed out that these thirteen reasons are not exhaustive. Rather, they are a baseline for rejection, while employers can also reject a request for not being suitable on “business grounds,” which is again broad and vague. The expansive nature of the employer’s right to reject a request critically weakens the right to remote work. These grounds in essence give complete discretion to the employer as to whether workers can avail of the right at all. This arguably renders the right to remote work illusory. Although the Bill prohibits an absolute voidance of the right, the practical effect of the Bill creates such a scenario for workers in reality.

While workers can challenge refusals at the Workplace Relations Commission, this too is laden with practical problems that hamstring workers’ rights. Foremost is the fact that many workers will be daunted by the prospect of challenging their employer in a formal setting, especially given the broad grounds for refusal, which will in effect confine challenges to only the most egregious denials. This will, in particular, impact younger or less experienced workers, who may be less likely to formally challenge an employer’s unfair refusal for fear of jeopardising their careers. Further, challenges are limited only to procedural issues, indicating that once the process is followed and a business ground provided, workers cannot succeed in a challenge. The twentysix-months-of-service requirement would also seem to favour long-term workers seeking long-term remote arrangements, again to the disadvantage of those on shorter or contract-based work.

Another issue is that the onus lies on workers to provide a written request setting out a number of different criteria, including a self-assessment on data protection, confidentiality, minimum levels of internet connectivity, ergonomic suitability of proposed workspace and any equipment or furniture requirements. While one would imagine workers will need to provide some form of information on these matters, arguably the standard is overly detailed and onerous, having the effect of discouraging applications in general. Considerations for

safe working arrangements and good ergonomics are important, but the legislation, unfortunately, offers no guidance as to how a worker can adequately demonstrate that their proposed workspace is suitable, again leaving employers with discretion. Furthermore, while employers are given a generous twelve weeks to consider applications, workers must wait a full year before submitting another request after a rejection. The Bill is exacting on employers too, opting for meticulous procedural requirements over flexibility.

While it is accepted with alacrity that remote working might raise problems, the last two years have shown that it certainly can be done. Indeed, many workers and businesses have seen the benefits of such working arrangements. According to the Second National Remote Working Survey, 95 per cent of workers favoured some kind of remote work while a mere 4.5 per cent wanted a full-time return to the office.

The evidence is clear that many workers have preferred some element of remote working and have felt noticeable improvements in their lives.

While some raise the spectre of lower productivity as an argument against remote work, this is not a compelling case. Numerous surveys have shown that productivity remained the same or improved with only a minority reporting any decrease. Indeed, even 47 per cent of managers reported that there was no difference in managing a team completely remotely. Taking all of this into consideration, it is therefore somewhat surprising that policy-makers have essentially called time on remote working in favour of a return to long commutes and less family time.

Embracing remote working would also allow for an ambitious strategy to tackle depopulation in rural Ireland and in Gaeltacht communities. Coupled with a commitment to an effective broadband strategy, the Government could have promoted a stronger shift to remote working, allowing workers to live in more rural areas while working at home, or indeed in remote work hubs, advantaging small businesses in towns across Ireland. Allowing people the meaningful choice to work from home would allow them to relocate to communities where such employment prospects would otherwise be impossible, with the resulting spin-off benefits for communities. Again, it is baffling that with all of these benefits the priority has been on a return to an unpopular and damaging trend of hyper-centralisation.

Some of the stated concerns included issues about the State interfering in private employment contracts. However, this seems like a rather weak argument. Arguably, all workers’ rights constitute some form of interference with the right to contract, and these are considered necessary to protect workers. There are many alternatives to the flawed model proposed. For instance, Alan Eustace and Niamh Egleston have suggested utilising a system modelled on annual leave, with each worker having a bank of remote workdays that can be taken in the same way as annual leave. Another proposal would be to make remote working a general right, permitting only a specified number of grounds for refusal without offering employers near-total discretion.

Unfortunately, the author is of the view that this Bill represents another clear example of the Government’s lack of creativity and ambition when it comes to imagining a new Ireland. Yet again, efforts have focused on benefiting employers and commercial landlords over families, workers, and their communities. While we all can look forward to a return to normal following this pandemic, the bill seems to represent somewhat of a missed opportunity to really change the way work is conducted in Ireland.