Alan Eustace

This week, the Department of Enterprise, Trade and Employment, headed by Tánaiste Leo Varadkar, published the draft Right to Request Remote Working Bill 2022. This legislation was promised by September 2021 in the Department’s National Remote Work Strategy. Alas, it was not worth the wait.

The bill suffers from a failure of imagination. The department talks about “the potential to fundamentally change the nature of where, how, when and why people work”, but this legislation will not bring about meaningful change in the culture of work. The bill has three main flaws: it is too impractical for employees to want to use it; employers are granted wide latitude to refuse requests; and enforcement of the legislation is toothless.

The bill explicitly envisages a “formal” process to request remote working. It is quite demanding: employees must specify in advance the location he or she will be working from, an assessment of data protection, and health and safety conditions in that location; the number of days to be worked remotely; and details of any previous requests made. It is not clear how an employee is supposed to conduct these assessments, and it undermines the case for remote working hubs, where the employee may not have access to this sort of information so far in advance. Employers can demand written evidence and in-person meetings with the employee to discuss the request. These are minimum requirements, and employers are free to demand employees meet more extensive conditions. Employers have up to 12 weeks to respond to a request.

Burdensome for employers

But the legislation is burdensome for employers too: they must specify “exact details of the proposed remote working arrangement”, start date, whether it is temporary or indefinite, procedures for ongoing review, and whether they will provide equipment or financial allowances to the employee. So the bill pleases nobody.

Employers may decline a request on “business grounds”. Although the legislation lists 13 reasons that fall under “business grounds”, these are non-exhaustive, so employers can come up with additional reasons if they wish. The indicative reasons are broad, including “concerns for the commute between the proposed remote working location and employer’s on-site location”, “planned structural changes” to the business, and the fact the “employee is the subject of ongoing or recently concluded formal disciplinary process”. It is unclear from the legislation whether the disciplinary process has to actually find any wrongdoing by the employee. Once a request is turned down, the employee cannot submit another for a full year.

The department made its policy choice clear: “This wholly subjective assessment has been chosen to ensure that employers retain the ability to determine working conditions based upon their own subjective assessment of their business needs.”

Employees could appeal against a refusal. However, they are limited to complaining that the employer has failed to follow the procedure set out in the bill. So long as the employer refuses within the time limit and quotes a “business ground” on which the decision is based (which, remember, the employer can make up beyond the list indicated in the bill), the employee has no right to complain about the “substance or merits” of the decision. Media commentary has mostly missed this.

Clearly, this legislation is not a sea-change in remote working, nor in broader workplace culture. Alternative proposals are available, and various members of opposition parties, trade unions and employers’ groups have suggested changes to the bill. As part of the Trinity College Dublin Covid-19 Law and Human Rights Observatory, my colleague Niamh Egleston and I considered this matter when the legislation was first proposed last January. We argued that the government should base its approach to remote working on the existing model of annual leave.

Normalisation of remote working

The proposed legislation clearly sees remote working as exceptional, albeit an exception that should be accommodated more frequently. Our model was based on the normalisation of remote working. We need to remember where we are starting from right now: not 2019, when remote working was unusual and most people and businesses were totally unequipped for it, but 2022, when everyone who can work remotely has been doing so for years. Why would the legislation presuppose a protracted, exacting process for verifying whether remote working would be suitable? The crucial benefit of remote working is flexibility. Why does the legislation provide such a long notice period, giving employers three months to consider, and prohibit workers from asking again for a year? It is clearly based around a norm of an established employee who wants to work remotely for a long, continuous period, rather than younger workers or those with caring responsibilities or disabilities who want to work remotely from time to time, instead of being forced to take annual or sick leave.

Employees should have a stock of 150 remote working days, just like we have four weeks’ annual leave. Employees should be able to take these at relatively short notice, as and when they choose –in absence of compelling reasons the particular timing is not suitable. We favoured a defined list of reasons for refusal, which mostly correspond to those suggested in the bill, but without the general power of the employer to make up new reasons. We also proposed that the Workplace Relations Commission could investigate whether an employer’s refusals are genuinely based on business needs. This should be up to the employer to prove.

It is easy to fall into tired cliches about how the pandemic has changed everything, there is no going back and we should embrace the “new normal”. But it is true that legislation always reflects an underlying norm. The working assumption of this bill is that remote working will become more common but is still a big deal. It does not need to be, unless employers and the government adopt an unduly restrictive approach. Unfortunately, this bill suggests that is the case.

• Alan Eustace is a fellow and lecturer in law at Magdalen College, University of Oxford and a PhD candidate at Trinity College Dublin School of Law. This article was first published by The Irish Times.