20/09/2022

Right to Request Remote Working

On 28 January 2022 details were published of a new law which will give employees the right to request remote working.

The Tánaiste said:
“Up until now, remote and home working has been imposed on a lot of people due to the public health restrictions. Now that they have been lifted, I want it to be a choice. I want workers to be able to work from home or remotely or hybrid if they want to. So long as the business get done and services are provided, employers should facilitate it.. This new law will give every employee the right to request remote working from their employer. Employers will be required to provide reasonable grounds for refusing to facilitate an employees’ request. These grounds are set out in the legislation and we will develop Codes of Practice to provide guidance to help employers implement the new law.”

The Right to Request Remote Working Bill 2021 will, for the first time, provide a legal framework around which requesting, approving or refusing a request for remote work can be based.

All workplaces will be required to have a written statement setting out their Remote Working Policy, specifying the manner in which remote working requests are managed, the timeline for responding to requests, and the conditions which will apply to remote working.

Points to note:

• An employee will be eligible to submit a request once they have worked for their employer for 6 months. However, an employer is free to offer remote work from day one if desired;
• At present, the draft scheme envisages the employer and employee meeting to discuss the request;
• The employer must inform the employee of its decision no later than 12 weeks after the request is made;
• The employee will have a right to appeal the decision;
• The employee cannot submit another request for 12 months unless they move to a new role in the company;
• There will be a right of appeal to the WRC where an employer has: failed to respond to a request; or has failed to provide any reasonable grounds for the refusal of a request. Employees will also be protected from penalisation for having exercised their entitlement to request remote working.

Employers will be able to decline a request for remote working on reasonable business grounds that include:

• The nature of the work not allowing for the work to be done remotely
• Cannot reorganise work among existing staff
• Potential negative impact on quality
• Potential negative impact on performance
• Planned structural changes
• Burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business
• Concerns re the protection of business confidentiality or intellectual property
• Concerns re the suitability of the proposed workspace on health and safety grounds
• Concerns re the suitability of the proposed workspace on data protection grounds
• Concerns re the internet connectivity of the proposed remote working location
• Inordinate distance between the proposed remote location and on-site location
• if the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement
• Ongoing or recently concluded formal disciplinary processes.

This is not an exhaustive list, so the draft scheme does recognise that employers may have other valid reasons for rejecting a request.

The draft scheme is similar in many respects to the right to request flexible working in GB. Whilst the amount the WRC can award for a breach of the scheme is modest (up to 4 weeks’ pay), the greater risk is discrimination claims including on grounds of disability (failure to make reasonable accommodation) and indirect sex discrimination (e.g. females with caring responsibilities.)

Additional Public Holidays

There will be an additional, one-off public holiday this year on Friday 18 March 2022.

From 2023, there will be a new annual public holiday in early February to mark St Brigid’s day. The public holiday will be the first Monday in February, except where St Brigid’s day (1 February) falls on a Friday, in which case Friday 1 February will be a public holiday.

Case Law developments

Whistleblowing

Tibor Baranya v Rosderra Irish Meats Ltd

Under the Protected Disclosures Act 2014 employees are protected from penalisation where they have made a protected disclosure (i.e. they have “blown the whistle”).

One difficult area is deciding whether a concern raised by an employee should be dealt with as a normal personal workplace grievance, or whether it is a protected disclosure. Employers have often considered that issues raised by an employee that are specific to themselves are not normally protected disclosures.

This case was considered by the Supreme Court prior to the Christmas break and its decision has significantly widened the scope of what could be considered a protected disclosure.

Why is the distinction between a grievance and a protected disclosure important?

Protected disclosures attract significant additional employment protections. For example, there is no minimum service requirement to bring an unfair dismissal claim. Furthermore, an employee who is dismissed wholly or mainly due to having made a protected disclosure can receive compensation of up to 5 years’ remuneration rather than the 2 year maximum for an unfair dismissal without a protected disclosure aspect.

The facts

The employee worked as a butcher in a meat plant. He told his employer that he was in pain as a result of his work and he asked to change role. Three days later, he was dismissed. He alleged his dismissal was because he had raised a protected disclosure (i.e. reported his pain from his work).

The employer disputed this version of events and alleged the employee was dismissed because he had walked out without them to address his request to change role. The employer also argued that the employee’s statements about pain could not be a protected disclosure as they related to his own issues at work and were not a matter of public interest.

The Workplace Relations Commission, Labour Court and the High Court all ruled that the complaint made by the employee did not constitute a protected disclosure.

Supreme Court decision

The Supreme Court ruled the employee’s complaint could potentially amount to a protected disclosure and the case was sent back to the Labour Court to make findings of fact.

Whilst the case has not reached a conclusion, the decision of the Supreme Court is very important.

The Supreme Court focused mainly on Section 5 of the Protected Disclosures Act 2014 which states that the following matters (amongst others) are “relevant wrongdoings” for the purposes of the Act:

• failure to comply with any legal obligation, other than one arising under the worker’s contract of employment; and
• that the health or safety of any individual was or is likely to be endangered.

The Supreme Court found that any alleged contractual default on the part of an employer on any matter, including pay, was not a protected disclosure. However, where an employee complained about an alleged failure to comply with statutory obligations, then this could be a protected disclosure. The Supreme Court gave the example that if an employee made a complaint regarding the mode and method of the payment of their wages under the Payment of Wages Act 1991, then this could be considered a protected disclosure.

The Court also addressed the fact that the 2015 Code of Practice on the Protected Disclosures Act erroneously differentiated between a grievance and a protected disclosure and stated that this did not accurately reflect the law.

As a result of this judgement:

• Complaints by employees relating to their health and safety at work can be protected disclosures;
• Complaints relating to an employer’s failure to follow statutory law as it relates to a complainant employee can be protected disclosures; and
• Alleged breaches of an employee’s contractual rights are not considered protected disclosures.

As a result of this decision it is important that employers ensure they understand the scope of the Protected Disclosure legislation when reviewing and responding to employee complaints. In practice, employees who raise complaints about their treatment at work now have a much wider scope to claim a protected disclosure.

As Members will be aware, the Protected Disclosure legislation is currently under review in light of the obligation to implement the Whistleblowing Directive and we wait to see whether this will result in any changes in respect of the scope of protections.

Fair Procedures

Frederick Hobson v Praxis Care

This is a Labour Court decision handed down in December 2021 in which, despite the Complainant admitting his misconduct, there were such significant flaws in the procedure that the decision to dismiss was not within the band of reasonableness. The Court was so critical of the Respondent’s dismissal process that it upheld the finding of unfair dismissal and increased the award from €20,000 to €31,868.37.
The Court’s criticisms included the fact that another employee, who was present during the incident in question, was not investigated and did not receive any sanction for the same misconduct.

However, the aspect we are focussing on is the role HR played in the disciplinary process. Specifically what led the Labour Court to find there was a “lack of independence in the process” that contributed to the unfairness of the dismissal.

The role of HR in the process included:

• HR appointed the manager to conduct the investigation. However HR did not ask the manager to investigate the incident, instead they were only asked to investigate the Complainant’s role in it;
• HR determined what witnesses should be interviewed and once the investigation was complete the investigation report was sent to HR;
• At the disciplinary stage HR had scripted the hearing before the disciplinary chair was even appointed;
• HR provided the disciplinary chair with a list of pre-prepared questions;
• At the hearing HR asked a question that went beyond simply seeking clarification.

The Labour Court found “a lack of independence in the process in a situation where HR are determining how the allegation is framed, who should be investigated, what questions should be asked at the disciplinary hearing and exonerating one of the parties to the incident without any plausible explanation.”

This case is a reminder that where a disciplinary investigation has been unduly influenced by a third party, such as an HR department, it is likely to compromise the fairness of the process and make any subsequent dismissal unfair. HR advisers should ensure that any advice they give is limited to questions of law, procedure and process. It will be for the decision maker, not HR, to decide on culpability. In our view it should generally be acceptable for an investigator to seek advice from HR, for example on questions of procedure or precedent, or to ensure that all necessary matters have been addressed. However if this remit is exceeded, then there is a danger that the fairness of the investigation process could be compromised, which could result in an unfair dismissal.