Remote working in 2021 and beyond: an Irish perspective

Summary of the Proposal

Under new plans announced by the government and no doubt as a result of COVID-related issues over the past year, employees will be afforded the right to work remotely and the right to disconnect. As part of this, the government intends to enact legislation to allow employees to request the ability to work remotely and to introduce a new code of practice allowing the right to disconnect from after-hours technology use. This initiative has the potential to completely alter working practices in the coming years, for the benefit of employers and employees alike, together with reducing the carbon footprint of the country.

The Tánaiste and Minister for Enterprise, Leo Varadkar (the Minister) published the first national Remote Working Strategy (the Strategy) on 14 January 2021 and it is to be implemented over the course of 2021, with legislation to be introduced by September 2021. Whilst the Strategy does not provide for an automatic entitlement for employees to work remotely, the employer will have to provide a valid reason as to why the request cannot be allowed.

To facilitate remote working in Ireland, the Minister detailed the steps that the government will take to explore how the existing network infrastructure in Ireland can be improved to enable remote working within Ireland, with a particular emphasis on more rural parts of Ireland.

The Strategy also details the government’s commitment to improve labour market participation by those suffering from disabilities, older workers and people with caring responsibilities. In the case of people with a disability or a chronic illness, remote working can remove the need to commute and can enable them to perform their duties more effectively around a more flexible schedule. Widespread remote working, therefore, has the potential to attract previously underutilised categories of individuals to the workforce by removing barriers and by creating a better environment for career progression.

Challenges

Feedback provided from employers has highlighted how remote working does not easily support creativity, group dynamics, shared ownership or collegiality. Research has also identified that remote working can lead to an innovation deficit owing to difficulties in collaborating with colleagues. One of the primary concerns of employers would also relate to employees’ ability to actually do their jobs from home, due to communication and hardware/software difficulties.

Notwithstanding these challenges, the unprecedented events of 2020 have clearly demonstrated that there is a resilience and ingenuity to the Irish workforce, which will make remote working not only a viable option, but a preferred option in many cases and for a variety of reasons.

For those with caring responsibilities, such as parents and caregivers, remote working can have a positive impact by allowing them to adopt schedules that accommodate both their personal and professional demands. A potential difficulty arising here, however, is the expectation that other colleagues with different personal circumstances would match their availability outside of normal office hours. The government have sought to eradicate this expectation by introducing the right to disconnect for employees.

The right to disconnect

The right to disconnect refers to a worker’s right to disengage and refrain from work related communications outside of their normal office hours. It was famously introduced in France in 2017.

There is currently no European legal framework directly defining and regulating the right to disconnect. The Working Time Directive (2003/88/EC) refers to several rights that indirectly relate to similar issues. In particular, there are minimum daily and weekly rest periods that are required in order to safeguard workers’ health and safety. These rights and requirements can be more easily managed when employees are on site, but are much more difficult to implement when a significant majority of the workforce are working remotely. Under the Remote Working directive, however, the State is obliged to introduce flexible working by August 2022.

Whilst the right to disconnect does not just relate to remote working, it has become clear, over the course of COVID-related restrictions, that employees have faced difficulties with ‘switching off’. Indeed, remote working during 2020 brought an increased sense of expectation for some employees to respond to emails outside of office hours, which a number of employers sought to quell by including wording within their emails stating that they do not expect a response outside of office hours.

In order to ensure that employees are protected from overwork, the Workplace Relations Commission (WRC) have been asked to draw up a code of practice in this area for approval by the Minister and it will be very interesting to examine the content of this code of practice, once published.

Comment

Whilst the above proposals are very positive and have the potential to revolutionise working practices in Ireland, it remains to be seen how these proposals will develop. It is also likely that there will be a significant body of work involved in creating a legal basis for these proposals, which is workable and which appropriately balances the rights and responsibilities of both employees and employers.

Lastly, we would note that the Insurance industry, in particular, has adapted very successfully to remote working and there is no reason why it cannot become a positive example of how remote working can be seamlessly incorporated into the working day, to the advantage of both employees and employers, not to mention the environment.

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