For something that was promised to ‘change the norm’, the Right to Request Remote Working Bill has since been called ‘utterly pointless’. The plan needs a serious rethink, writes Jenny Darmody.
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 about certain requirements and the lengthy list of reasons an employer could give to turn down the request – and for good reason.
Mary Connaughton, director of HR body CIPD Ireland, said at the time 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.
Her concerns are well founded. Combined with the fact that employers can take up to 12 weeks to issue a response, this 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”.
This alone should have given those drafting the bill pause for thought.
‘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 attended by representatives from 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”.
However, McElwee’s concerns were much more in favour of the employer rather than the employee, questioning whether every employer really needs a remote working policy. She said that the legislation could lead to “absurd situations” where a small café would require a remote working policy, even though remote working would never be a factor there.
She raised concerns for employers around cost and their obligations around health and safety and potential liability. But she showed her support for the list of reasons employers can refuse remote working requests, deeming them to be “fair and objective”.
In contrast, ICTU general secretary Patricia King said the bill is “fatally flawed” and that it is “stacked in favour of the employer at every turn”. She also said the grounds for refusal and 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 said the “new right” would help give society an 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 and maybe the request would have been scoffed at by our manager. But the right to ask was always there.
Admittedly, employers were previously able to quite easily ignore a request to work remotely and the new legislation would require them to actually answer the question.
But King made an extremely important point in yesterday’s meeting, which was that the broad list of reasons employers could use to say no was not limiting. This essentially means they could say no for whatever reason they want as long as they can claim it’s 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. With this, King said that the 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 if they can be easily refused by an employer.
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 it has presented.
Luckily, Varadkar has since acknowledged that there were probably too many reasons for an employer to refuse a request for remote working and said he is 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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