Remote Working and Sick Pay: where are we now?
In light of renewed Government guidance that everyone should work from home “unless necessary to attend in person” it is timely to have another look at the law around working from home in Ireland. Almost two years on from the start of the pandemic and an abrupt end to office life as we know it, what structures have been put on remote work in Ireland and how far advanced is the law on a right to work remotely?
Why Are We Currently Working From Home?
For everyone other than essential services (which, of course includes lawyers and accountants!) working from home has been a permanent fixture in our lives since March 2020. However, over the summer of 2021 employers were encouraged to take a “phased” and gradual approach to bringing employees back into offices, though that advice was steadily diluted as Covid case numbers remained stubbornly high. On 19 November 2021 that advice was fully reversed with Government guidance reverting to “everyone should return to working from home, unless it is necessary to attend the workplace in person”. It is notable, however, that current guidance appears to be slightly more lenient than guidance used earlier in the pandemic which required work from home “unless absolutely necessary” or “unless it is for work which is in essential health, social care or other essential service and cannot be done from home”.
The current government guidance on working from home is just that – guidance. It does not have the force of law, but rather is a form of “soft law” which can be influential nonetheless. Employers are advised to comply with the guidance as failure to do so may influence whether an employer is found to be behaving reasonably or otherwise in any dispute that may arise in relation to workplace safety issues. For example, if employees believe their employer is failing in their duty to provide a safe working environment, they may sue under the Health, Safety and Welfare at Work Acts, and an employer’s non-adherence to Covid-related Guidelines or Protocols would potentially undermine any defence to such a complaint. There are of course also reputational issues at stake as certain employers have found when called out by politicians or Joe Duffy for non-adherence to Covid Guidelines.
Can We Tell Our Employees to Return to Office Work?
There is currently no statutory right in Ireland to work remotely, nor is there likely to be one any time soon. However, employers and employees may of course agree contractual remote working arrangements on a case by case basis (and many employers are implementing company-wide remote working policies), but there is no obligation or entitlement to do this.
If your employees are currently working remotely, you should consider the Code of Practice on the Right to Disconnect, and the Government’s policy document “Making Remote Work” and develop a Remote Working / Right to Disconnect Policy.
When Covid restrictions are finally lifted employers will have a firmer say in these matters again. Employers may want office life to resume as it was previously with employees working from their office 5 days per week. For now, assuming 9-5 in the office was the contractually agreed working pattern to begin with, and subject to the points above, employers should be able to achieve this from a legal perspective strictly speaking, though such an approach may impact on employee retention.
What is a Right to Request Remote Work?
What the current government has promised is a right to request remote work, which is a very different thing to an actual right to remote work. Employees can ask to work from home, but they won’t have a legal right to do so and employers will be entitled to reasonably refuse requests for remote working. Employees will likely be able to appeal such a refusal to the Workplace Relations Commission.
The Government conducted a public consultation in 2021 regarding the introduction of a right to request remote work and issued a report in September 2021. The report suggests that:
employers will have to provide written reasons for any such refusal within a certain timeframe (e.g. one month from the request)
employees may need a certain period of service with their employer (e.g. 12 months) before they are entitled to request remote working
employees may be restricted from making repeated requests in short time periods
employers may be required to put in place a policy on remote work which can be inspected by employees and the WRC
guidance may be provided to employers on what would constitute a reasonable refusal
employers may be allowed suggest alternative hybrid working patterns when faced with a full time remote work request
employers and employees may need to provide a period of notice before cancelling or amending a remote work arrangement
employers may be required to bear the cost of remote working equipment and maintenance
employers may be permitted to monitoring employees to the extent required to ensure compliance with the Organisation of Working Time Act and Health and Safety legislation
We will issue an updated client alert once a bill is published.
Where Are We Now with this Legislation?
Heads of a Bill on the Right to Remote Work were expected to be approved by Cabinet before the end of 2021, but this has not happened yet. The Bill itself is unlikely to be seen before Q2 2022.
What Else is the Government Planning?
The Government has pledged to introduce legislation on a right to sick pay for employees with effect from 1 January 2022. Ireland is currently an outlier in western Europe (including the UK) in not requiring employers to provide sick pay to employees. The main points of the Government’s proposed statutory sick pay scheme are:
Sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily cap of €110.
Employees will have to obtain a medical cert to avail of statutory sick pay
The entitlement is subject to the employee having worked for their employer for a minimum of six months
The scheme will be phased in over four years, starting with three days per year in 2022, five days payable in 2023 and seven days payable in 2024. Employers will eventually be required to cover the cost of 10 sick days per year in 2025.
The Sick Leave Bill 2021 was published recently in November and is currently working its way through the Oireachtas. It remains to be seen whether it will be approved by 1 January 2022.
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By Ciarán Ahern