Marie Sherlock (Labour) | Oireachtas source

I move amendment No. 46:

In page 22, lines 40 and 41, to delete “ shall not assess the merits of” and substitute “may where appropriate consider and take into account the reasonableness of”.

This amendment relates to the right to appeal the decision by the employer. It is worth reading into the record what exactly is in the legislation. The proposed section 21A(6) states:

In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of— (a) the decision of the employer reached following his or her consideration ... of the employee’s request...

(b) the refusal by the employer ...

(c) the decision of the employer to terminate ...

I have engaged with the Minister and his Department officials on this and that was welcome but as this Bill stands there is, in our reading, no right to appeal the substance of a refusal by an employer or the termination by an employer of a flexible working arrangement.

I appreciate this is in some ways a hybrid Bill. It is the Work Life Balance and Miscellaneous Provisions Bill and the right to request remote work Bill 2021 forced together. I previously argued we should be treating flexible work and remote work the same but the key point is when we saw the heads of Bill for the right to request remote work Bill there was genuine outrage at the lack of a right to appeal the substance of a refusal by an employer. There was a provision in the heads that were published to appeal the process the employer and the employee would have undertaken but not the substance of a refusal. That would be a significant shortcoming in this legislation and at odds with the spirt of the rest of our employment legislation whereby if there is a change of working conditions a person has, by and large, a right to appeal that change. That this legislation effectively does not allow a right to appeal a refusal or any decision by the employer with regard to an employee's request is a significant shortcoming. I am aware the Department takes a very different view but it is important we bring this amendment forward because of that shortcoming.