After a lot of discussion and promises last year that the right to request remote working would become a priority for the Irish Government, new legislation was finally published at the end of January.

The Right to Request Remote Working Bill aims to provide a legal framework for Irish workers to request remote work and have their request approved or refused by employers.

However, shortly after the bill was announced, criticism started flying in, especially given the lengthy and vague list of reasons an employer could give to turn down the request.

Mary Connaughton, director of HR body CIPD Ireland, said at the time it was published that it was “disappointing” to see no provisions for flexible working in the bill.

“In its current form, the new law would give workers the right to request where they work, but not when and how. We also note the proposed law requires that any remote working arrangement be fully assessed and tied down in an agreement between employer and employee,” she said.

“This raises the concern of the potential loss of flexibility that employees currently have around selecting which days they go to the workplace or having the freedom to complete work activities when they choose.”

Connaughton also found it surprising that the right to request remote working would only be possible for employees who have been with a company for six months.

This, combined with the fact that employers can take up to 12 weeks to issue a response would mean an employee could be waiting up to nine months for an answer on their request to work remotely – and that answer could still be no due to something as vague as “planned structural changes”.

‘Sitting back and thinking that you’ve hit some vague middle ground is not the answer here’

Yesterday (2 March), the draft legislation came under further scrutiny at a Joint Oireachtas Committee meeting from the Irish Business and Employers Confederation (Ibec) and the Irish Congress of Trade Unions (ICTU).

Ibec’s director of employer relations Maeve McElwee said that while she is supportive of the Government’s efforts around remote working, she said the statutory right to request remote working at this stage is “premature and may stymie the ability for employers and employees to manage remote working in a creative and dynamic way”.

McElwee also said she worried that the legislation would lead to “absurd situations” where a small café would require a remote working policy.

She also spoke about worries for employers such as cost and their obligations around health and safety and potential liability. However, McElwee did support the list of reasons employers can refuse remote working requests, deeming them to be “fair and objective”.

‘Utterly pointless’

ICTU’s general secretary Patricia King went further in her criticism of the bill, saying it is “fatally flawed” and that it is “stacked in favour of the employer at every turn”.

She also said the grounds for refusal and grounds for appeal “significantly impair the usefulness and effectiveness” of the proposed scheme.

When the bill was finally announced at the end of January, Tánaiste Leo Varadkar announced it as a “new right” that will give society and opportunity to change the norm.

But the biggest complaint is arguably that it’s not a new right at all. Weren’t we always allowed to request remote working? Perhaps before the pandemic we may have been slower to ask. Maybe we would have even been scoffed at by our manager. But the right to ask was always there.

Admittedly, employers were previously able to quite easily ignore the request to work remotely and the new legislation does require them to actually answer the question.

But King made an extremely important point in the joint committee meeting, which was that the purposefully broad list of reasons employers could use to say no was not limiting. This essentially means they can say no for whatever reason they want as long as they can claim its for the needs of the business.

And when she said it’s stacked in favour of the employer, she’s not wrong either. When it comes to the grounds for appeal, employees can only make a complaint to the Workplace Relations Commission on procedural grounds. This means they can’t query the reason why they’ve been refused.

King said that without the ability for an employee to take issue with the reason they have been refused the right to remote work, the proposed legislation is “utterly pointless”.

If at first you don’t succeed

It’s common practice to think that if two sides of a debate have complaints about something you’re doing, then you’re probably on the right track in terms of balance.

In this case, Varadkar may have believed that if some think the legislation goes too far and others think it doesn’t go far enough, that it’s doing something right.

But sitting back and thinking that you’ve hit some vague middle ground is not the answer here. Employers are quite rightly concerned about what they have to do in terms of building remote working policies.

More importantly, employees – who the bill is meant to be for – are questioning how exactly this legislation helps them in any way when they can’t even appeal the final decision.

It’s important to note that draft legislation is not final and will always draw criticism. It is this criticism that can go towards better, stronger laws.

However, when a bill invites phrases like ‘fatally flawed’, ‘useless’ and ‘utterly pointless’, the Government really needs to think about what they have presented.

Luckily, Varadkar has since acknowledged that there were probably too many reasons for employer to refuse a request for remote working and said he was willing to change the bill and make it “fit for purpose”.

It’s not yet clear what changes will be brought in to improve the legislation. What is clear is that implying the bill – in its current form at least – gives employees a new right that they didn’t have before is a bit of a stretch.

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