Niall Pelly

The Irish government has recently announced that it plans to provide employees with the right to request remote working. As many employers turn their mind to bringing employees back into the office, what’s the law on remote working in Ireland and how is this set to change?

Is there a right to work remotely in Ireland?

No, unless it already forms part of an employee’s contract of employment or is subsequently agreed to by their employer, employees cannot force their employer to let them work remotely.

Employees can ask to work remotely but an employer can lawfully refuse such a request as long as their refusal isn’t directly or indirectly discriminatory.

Is this set to change?

The Irish government announced in March, as part of its National Remote Work Strategy, that it plans to provide employees with the right to request remote work. It originally intended to introduce this legislation in Q3 2021 but has now indicated that this will be introduced at the end of the year.

Is this a right to work remotely?

No. Contrary to how it has been reported in some places, the Government is not creating a right to work remotely – only to give “the right to request remote work.”

Considering employees already have this right (i.e., they can just ask their employer) the key change is that this new legislation is likely to limit when an employer can refuse such a request and may also give employees a right of action against their employer where such a request is unreasonably refused.

What will change?

Details of the grounds on which an employer may refuse a request for remote work have not yet been announced, nor the potential consequences for refusing the request. However, it is expected that a similar approach will be taken to that in the UK, where the right to request flexible working – and the grounds on which such a request can be refused – has been in place since 2003.

How is this issue dealt with in the UK?

In the UK, flexible working requests can only be refused for a limited number of defined reasons, including cost, an inability to re-organise work or recruit additional staff, detrimental impact on quality or performance, planned structural changes and/or an insufficiency of work during the periods the employee proposes to work. (For more information on the right to request flexible working in the UK see our note here).

Given the broad list of allowable exceptions, a perception exists that UK employers do not have to try too hard to find a reason to refuse a flexible working request. It is likely that a similar list of reasons will be introduced in Ireland, but it remains to be seen if the list will be as broad.

However, given that many Irish employees have been working remotely for 18 months now because of COVID-19 restrictions, it will be a brave employer who argues that it is not a practicable arrangement going forward, when those restrictions are (eventually) removed.

Will the legislation extend to other forms of flexible working?

Remote working is just one example of a far broader range of flexible working arrangements, including part-time, flexi-work, annualised hours and compressed hour arrangements. These types of arrangements are included in both the UK’s flexible working legislation, and the EU’s Work-life Balance Directive, which Ireland is required to implement by no later than August 2022.

The Work-life Balance Directive requires member states to ensure that certain workers have the right to request “flexible working arrangements” which are defined to include not only remote working, but also working schedules and working hours.

However, the government’s Making Remote Work strategy document suggests that only legislation relating to a request to work remotely is currently being planned.

What limitations will be placed on the right to request remote working?

The Work-life Balance Directive is limited to parents and working carers. In the UK, the right to make a flexible working request is confined to employees with more than 26 weeks’ service. Bearing this in mind there may well be some limits placed upon this right before it becomes law, albeit it is not yet clear from the Making Remote Work strategy document what form these limitations will take.

• Niall Pelly is a partner and head of GQ|Littler in Dublin.