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Proposed remote working legislation lacks 'teeth', say unions and employment lawyers

Trade unions have taken aim at the draft legislation, which they say is stacked in favour of employers over workers.

Image: Sasko Lazarov

THE GOVERNMENT’S DRAFT legislation on the right for employees to request remote working lacks detail, say unions and employment law solicitors.

Speaking yesterday after the Cabinet approved a bill that would give people the right to request remote working, Tánaiste and Minister for Enterprise Leo Varadkar said employers would “have to give a good reason” to deny a request under the new framework.

The heads of the bill, published yesterday, also provide for an appeals mechanism if an employee is refused a request to work remotely. 

But trade unions have taken aim at the draft legislation, which they say favours business owners over workers. 

Speaking on the Today programme with Claire Byrne on RTÉ Radio 1 today, Patricia King, General Secretary of the Irish Congress of Trade Unions, said that the 13 reasons why employers can refuse a request under the legislation are “fairly stacked in the employer interest”. 

Some of the reasons an employer can refuse a request include:

  • If the nature of the work doesn’t allow for remote working;
  • If there is a burden of additional costs, taking into the scale and financial resources of the business;
  • If the business is planning structural changes;
  • If there are concerns about the protection of business confidentiality or intellectual property;
  • If there are concerns about the suitability of the proposed workspace on health and safety grounds;
  • If there is an inordinate distance between the proposed remote location and the on-site location.

King said the ‘structural changes’ exemption is particularly unfair for workers.

She said, “How would a worker have any knowledge about what the planned restructuring is?

“So an employer can receive your request and write back to you and say, ‘No we can’t give you that because we have planned restructuring’”.

“These pieces need to be relooked at, they need to be reformed and reworked,” she said.

“They’re neither fair nor reasonable by any standards.”

Employment lawyers say workers and business owners will have their own questions about the proposed framework.

Speaking to The Journal this afternoon, solicitor Karen Killalea said “it’s a light piece of legislation” which is helpful for employers who are trying to “scale back up” now that workers are permitted to return to offices.

The head of the employment team at law firm Maples said, “It certainly provides a framework for a conversation, but it doesn’t really move the dial in terms of employers now having to pivot to permanent remote working arrangements.”

Overall, Killalea said, there is an “absence of teeth” in the framework as currently constituted.

She explained, “I fully expected [the framework] be a little bit harsher on employers in terms of making sure that the decision to refuse a request for remote working was correct and that it wasn’t a sham decision.”

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The draft legislation obliges employers to facilitate an internal appeal of any decision to refuse remote working.

Workers can then take a claim to the Workplace Relations Commission but only for “technical” reasons, Killalea said, “like if the response is late or it doesn’t contain the particular information” about the grounds for refusal.

“But it doesn’t actually allow an employee to say, ‘Hang on a second. This was just a plainly unfair decision.’”

While on balance, the draft framework doesn’t force business owners into making any particularly onerous changes, there are one or two “curious” aspects for business owners, Killalea said.

“It’s a little bit strange that the only teeth that are really flashed in this legislation is that it is potentially a criminal offence not to have a remote working policy,” she explained.

“A lot of small businesses that are on-site — like hairdressers, beauty salons, coffee shops, restaurants, anywhere where you’re sort of customer-facing — are going to be thinking that’s a bit crazy.”

However, Killalea said “it’s still very early” and some of these issues may be refined before the legislation is finalised. 

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