Melanie Crowley

The business law firm surveyed over 150 HR professionals from both the public and private sectors at a recent webinar considering key aspects of the government’s national remote work strategy, the new code of practice on the right to disconnect and the draft Right to Request Remote Working Bill 2022.

A large majority (87 per cent) of organisations have started bringing employees back on site, with 44 per cent stating they will be “very flexible” about facilitating remote working. Most (51 per cent) of organisations state that they will be “partially” flexible, and five per cent will not be at all flexible about facilitating remote working for employees.

Jessica Bielenberg, senior associate at MHC, said: “As it stands, employees don’t have the legal or statutory right to request remote working, so that’s what the Right to Request Remote Working Bill is trying to legislate for.

“In reality there is not much a disgruntled employee can do if their employer refuses a request for remote working. They can put in an appeal; employers should have an appeal process in place in their remote work policy and an employee has to wait two weeks to allow the employer to deal with that appeal.”

Only at that point will the proposed bill allow an employee to bring a claim to the Workplace Relations Commission (WRC).

Senior partner Ger Connolly noted as “interesting and somewhat unusual” that the bill provides that it will be an offence not to have a remote working policy in place. The MHC survey found that currently 41 per cent of organisations do not have a remote working policy in place.

“Organisations should absolutely have a policy that sets out their position in relation to remote working”, Mr Connolly said.

“Before the legislation comes in, organisations should take the time to consider what this actually means to them from an operational point of view because, unlike other policies, your remote working policy will have a bearing on your employees’ performance of their jobs on a weekly basis.

“Our strong advice is to spend time drafting a policy that suits your organisation’s needs and be clear about how this impacts on the contract of employment. If bespoke arrangements are in place, these should be clearly communicated by email and employers should reserve the right to review and revisit arrangements on a regular basis.”

The survey also found that only 38 per cent of organisations have conducted risk assessments of employees’ remote working spaces.

Mr Connolly said: “Employers have the same health and safety obligations whether employees are working from the office or working from their kitchen table. There is a very clear onus on employers to carry out a risk assessment and to provide the right equipment for their employees.”

This has always been an obligation under health and safety legislation. However, under the draft Right to Request Remote Working Bill, there is a requirement for employees to identify a dedicated remote workspace and to conduct a self-assessment of this space.

Finally, nearly two-thirds (63 per cent) of organisations stated that they do not have a right to disconnect policy in place, despite the code of practice on the right to disconnect being introduced in April 2021.

Melanie Crowley, head of MHC’s employment and benefits team, said: “The fact that so many employers haven’t put in place policies around the right to disconnect, coupled with the fact that complaints under the Right to Request Remote Working Bill are limited to process issues (and not the substance of an employer’s refusal to permit remote working), makes me wonder whether it is all a bit of a non-event.

“Employers and employees also need to bear in mind that remote working is not the same as flexible working and that flexibility in this post-Covid reality we all now inhabit is, I think, what employees really want.”