Right to Request Remote Working

Remote working has become commonplace over the past two years because of the COVID-19 pandemic. Last year, the Government made a commitment in its Remote Work Strategy to provide a statutory right for employees to request remote working. As a result, and in line with the Work-Life Balance Directive (Directive (EU) 2019/1158), which requires that member states provide the right for working parents and carers to request flexible working arrangements, including remote working, the Government has published the Right to Request Remote Working Bill 2021 (the Bill). The Bill places substantial obligations on employers to have a framework in place to deal with requests for remote working.

What rights and obligations will employees have?

Crucially, the Bill does not provide for a right to work remotely. It provides employees with a right to make a request to work remotely, and for that request to be dealt with quickly and transparently. Decisions must be made by the employer on business grounds only. The right to request remote working is only available to employees who have 26 weeks’ continuous service with their employer. Employees will also have to comply with various requirements when making their request.

Employees must not be penalised for having made a request to work remotely. This means that an employee cannot be laid-off, suspended, disciplined, dismissed, or subject to less favourable work conditions for having made a request. If an employee is penalised, or if the employer does not comply with the requirements of the Bill, the employee can make a complaint to the Workplace Relations Commission (WRC).

What rights and obligations will employers have?

Primarily, the Bill places an obligation on employers to maintain a written remote work policy. A Code of Practice will be published by the WRC containing guidance for the creation of such policies. Once the Bill is enacted it will be an offence to fail to have such a policy, or to fail to bring it to the attention of employees. The policy must specify:

• How requests for remote work will be managed
• The time frame within which they will be managed, and
• Any specific conditions that will apply to remote working generally within the business

When drafting this policy employers should bear in mind that any existing remote working agreements or policies that do not comply with the requirements of the Bill will be deemed void once the Bill is enacted.

The Bill sets out how an employer must respond when an employee submits a request to work remotely. One of the main requirements is that the employer must deal with and respond in writing to the request as soon as possible, but at the latest within 12 weeks. The employer must also consult with the employee or trade union, if recognised.

An employer can:

• Accept the employee’s request
• Partially accept the request but make a counterproposal in respect of the remote working arrangement, or
• Decline the request

The decision must be in writing and must contain details of the decision, such as, if the request is rejected, the business grounds for the refusal. The Bill suggests examples of business grounds which can be relied upon by employers when denying a request to work remotely, such as:

• The nature of the work does not allow it to be done remotely
• The inability to reorganise work among existing staff
• The potential negative impact on quality of business product or service
• The burden of additional costs, and
• Concerns around confidentiality or data protection

However, an employer does not have to rely on one of the grounds provided in the Bill and has full discretion to rely on grounds that are specific to their business.

Right to Appeal

The Bill allows employees to make a complaint to the WRC if an employer fails to comply with the Bill in dealing with a request, for example by not responding within the time limit, or failing to give reasons for the decision. The WRC will not consider the substance of the employer’s decision, only whether it complied with the requirements of the Bill.

If the employer’s remote work policy contains an internal appeal mechanism, an employee cannot make a complaint to the WRC until two weeks after they have raised an internal complaint.

The WRC can award up to four week’s pay in compensation and can order the employer to provide a decision or give reasons for their decision, within a four week period.

Conclusion

While many employers have successfully implemented remote working in light of the pandemic, the Bill, once enacted, will provide legal clarity and certainty around the decision-making process when considering an employee’s request to work remotely. It will ensure that employees do not face unnecessary delays or decisions based on spurious reasoning, while also protecting employers from repeated unsuitable requests and unfounded complaints. Employers should ensure that they create, or update their existing, remote work policy in advance of the Bill being passed.

If you would like further information on the Right to Request Remote Working, please contact a member of our Employment & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.