Mr. Dermot Mulligan:

I thank members for the invitation to attend the committee to discuss the right to request remote working Bill 2021. I welcome the opportunity to do so and thank the committee for facilitating pre-legislative scrutiny on this important matter.

I will give some background and context to the Bill. The increase in home working since March 2020 as a result of Covid-19 has brought remote working to the forefront of working life in Ireland and globally. Though the adoption of remote work was already increasing in Ireland, Covid-19 has greatly accelerated this trend, making remote work a central part of the workplace today and into the future. While this arrangement has been beneficial for some, it is important not to conflate the experience of home working during the Covid-19 pandemic with remote working under a regular scenario. The sudden introduction of home working often resulted in less than ideal working conditions for both employers and employees. Significant challenges have been faced over this period, including those regarding the remote working infrastructure, suboptimal home working environments and the availability of early learning childcare and schooling.

Despite these substantial challenges, interest in remote working in the long term remains strong among employees. Research carried out in October 2020 by the NUI Galway Whitaker institute and the Western Development Commission found that 94% of participants would like to work remotely, at least some of the time, after the crisis. This figure is almost 10% higher than it was in the first phase of the research, published in May of the same year. Many workers place huge social value on workplace flexibility, and remote working plays a central role in enabling that increased flexibility to support a better work-life balance.

There has been a significant long-term shift in attitudes to remote work among both employers and workers throughout the country. Acceptance of remote work is high. Remote and hybrid working is here to stay. While remote working should never be used as a substitute for any form of childcare, it provides families with more flexibility around which they can base their early learning and childcare choices.

The 2020 programme for Government contains several commitments on the topic. Remote work is already a key consideration in Government policy documents such as the national economic plan, the climate action plan, the town centre living initiative and the smarter travel policy. The State is committed to increasing remote work adoption in Ireland through removing barriers, developing infrastructure, providing guidance, raising awareness and leading by example in this area.

The Government’s remote work strategy, published in January 2021, aims to build on the progress made in the adoption of remote work over the Covid-19 crisis period. The strategy is built on three fundamental pillars: first, creating a conducive environment; second, developing and leveraging remote work infrastructure; and third, building a remote work policy and guidance framework. The strategy sets out plans to strengthen the rights and responsibilities of employers and employees and to provide the infrastructure to work remotely. It sets out clear guidance on how people can be empowered to work remotely away from the employer’s premises.

In the context of pillar 1, creating a conducive environment, a commitment was made to legislate to provide employees with the right to request remote work. This is one of the key actions of the strategy. Prior to seeking Cabinet approval to draft the Bill, the Department of Enterprise, Trade and Employment undertook a full public consultation that sought the views of relevant stakeholders and members of the public on key policy questions around the design of the scheme. In total, 175 submissions were received with a good mix of views from business and employee representative bodies and individual workers and employers.

In addition to the public consultation, the Department undertook an international review to get a better understanding of how remote working legislation operates elsewhere. There is no one-size-fits-all model. Some countries have a similar right to request remote or flexible working, more provide for remote working only by agreement between employer and employee, and many have no legislative framework in this area.

The definition of flexible working is much broader than remote work and may include the possibility of starting or finishing at different times, doing compressed hours, and having access to flexitime and shared working options. This Bill deals with remote work.

In relation to the key parameters, the policy objectives of the legislation are essentially to provide a legal framework around which requesting, approving or refusing a request for remote work can be based. It will also provide legal clarity to employers on their obligations for dealing with such requests.

The legislation will do a number of things. It will provide a right for employees to request remote working, oblige employers to state business grounds for refusal of such a request and provide a right of appeal to the Workplace Relations Commission, WRC, where an employer has failed to respond to a request or to provide business grounds for refusal of a request.

The legislation will also provide for the development of codes of practice to provide guidance to employers, employees and their representatives on the general principles that apply in the operation of remote working and to aid with the implementation of the new legislation. It will oblige employers to prepare a remote working policy specifying the manner in which remote working requests of their employees will be managed and the specific conditions that will apply to remote working generally within the organisation. The timelines for responding to a request shall also be set out in the employer’s remote work policy but shall not be more than 12 weeks. The legislation will provide that an employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to request remote working and provide that the WRC may at the request of the Minister prepare a code of practice for the purposes of any section of this Bill.

Remote working does not work for everyone or for every organisation so the approach taken in the legislation is a balanced one. It is recognised that not all occupations, industries or particular roles within an enterprise will be suitable for remote working. Therefore, even in cases where employers want to support workers and be as flexible as possible, it will not always be an appropriate or suitable option. It is clear that the interest in remote working in the long term remains strong for a lot of workers and many will want to continue with at least some remote working after the pandemic.

Regarding eligibility, an employee will be required to have worked for his or her employer for a period of six months before he or she is eligible to submit a request for remote working under the Bill. This is to allow time for an employment relationship to develop between the employer and employee and is a feature in some existing company-level remote working agreements. While we do not have a statutory maximum probationary period in Ireland, it is in line with the cap placed on statutory probationary periods of six months under the transparent and predictable working conditions directive. It is also half the qualification period of the Unfair Dismissals Act at 52 weeks, which will ensure that those on shorter fixed-term contracts can also submit requests for remote working.

Many companies already offer remote working so the Bill is not intended to undermine existing remote working agreements that may offer more favourable terms overall, many of whom offer remote or hybrid working schemes from day one of the employment relationship. The Bill is primarily intended to act as a floor-level protection and ensure that workers, particularly those employees who currently have no access to remote working, will have an entitlement to make a request to do so. Employers will be required to provide grounds when refusing to facilitate an employee's request. The Government wants to give employees a choice. The Tánaiste has said on several occasions that as long as the business gets done and services are provided, employers should facilitate remote working where they can.

It was important to identify possible examples of business grounds for refusal in the legislation. The new law also provides for a time limit for an employer to return a decision relating to a request from an employee. The employer can set out its own specific time limit within its remote work policy but it must not be more than 12 weeks. Where the employer has diligently completed the assessment process and any appeal has been heard, the employee will be required to wait a period of 12 months to submit another request provided he or she is in the same role. If an employee moves to a new role within the company, he or she may submit a new request.

The legislation provides that all workplaces must have a written statement that sets out the company’s remote working policy. This policy will specify the manner in which remote working requests are managed, the timelines that will apply to deal with a request and the conditions that will apply to remote working generally within the organisation. We will work to minimise the burden of this new requirement on employers. Information will be provided in the form of templates for remote work policies to assist employers develop their own policy and to help them identify the types of information and procedures that should be outlined in the policy. The legislation provides for the development of codes of practice to provide guidance to employers, employees and their representatives on the general principles that apply in the operation of remote working and to further aid with the implementation of the new legislation.

As with other statutory employment rights, where an individual believes he or she is being deprived of rights to which he or she is entitled under the remote working Bill, he or she will be able to refer a complaint to the WRC where the matter can be dealt with by way of mediation or adjudication leading to a decision that is enforceable through the District Court. WRC inspectors can also be asked to investigate certain breaches. We are currently looking further at the legal issues related to strengthening the redress provisions and a right of appeal and are taking legal advice on the matter.

This landmark legislation is the first of its kind in Ireland. The Government has attempted to take a balanced approach in bringing forward the Bill. Not all occupations, industries, or particular roles within an enterprise will be appropriate or suitable for remote working, for example, construction workers, nurses, doctors, waste collectors, etc. Calls to introduce a blanket right to remote working are not realistic. However, the scheme is designed so that all employers must consider the scope for remote working in all roles in formulating their remote working policy. Some concerns have been raised regarding how remote working can impact people differently depending on gender with care burdens and reduced visibility of remote workers having potentially higher levels of negative impacts for women in the workplace. I emphasise that the scheme is a work in progress that introduces a statutory framework around requesting, approving or refusing a request for remote working that can be adjusted over time. In addition, as workplaces return to more normal pre-pandemic status and remote working is properly introduced, we will keep practice under review. We are happy to answer any questions members may have.