Success of pandemic remote working should count if staff wish to operate from home, TD says

Oireachtas enterprise committee debates Bill aimed at giving right to request to work remotely

Successful periods of working from homes by employees during the pandemic should be taken into account when staff request the right to operate remotely in future, an Oireachtas committee has heard.

Sinn Féin TD Louise O’Reilly said it “makes a bit of a mockery of two years of successful working from home” if people cannot rely on the fact when they seek to continue to do so or to move to a hybrid working arrangement.

Tánaiste and Minister for Enterprise Leo Varadkar published a draft version of the Right to Request Remote Work Bill 2022 in January. It is currently undergoing pre-legislative scrutiny before the Oireachtas enterprise committee.

Irish Congress of Trade Unions (Ictu) general secretary Patricia King previously told the committee that the draft law is "stacked in favour of the employer at every turn". She highlighted how the grounds of refusal are not limited to the 13 listed in the draft Bill.

There has also been criticism of how - under the draft Bill - appeals can only be made over procedural issues like an employer not responding to a request within three months rather than the merit of an employees application.

Department of Enterprise assistant secretary Dermot Mulligan told the committee that Mr Varadkar has said the department will "have a listening ear" and is open to changes to the legislation.

The department was said to be examining how best to strengthen the right of appeal as well as a possible reduction in the number of grounds under which an application can be refused.

Procedural grounds

Mr Mulligan said that Mr Varadkar has asked the department to examine whether it can ensure that the grounds for appeal are “more than merely procedural”. He said one possibility was “some sort of reasonableness test” but it needed to be determined if that was possible to do without infringing the constitutional rights of an employer.

Dublin Fingal TD Ms O'Reilly said that if someone went to the Workplace Relations Commission (WRC) to appeal a rejected remote working application they should be able to argue that they worked from home successfully during the pandemic.

Mr Mulligan said he did not want to get into what arguments could be used in a WRC dispute. He said the necessity to work from home during the pandemic was not the same as a “normal scenario”.

He said the Government was keen to have remote working progressed but he added that in many situations the working from home environment during the pandemic was “not ideal”.

“I don’t think we can assume that everyone worked successfully during the pandemic and that couldn’t be improved on in normal times.”

Earlier, Ms O’Reilly argued that the department’s willingness to “engage in substantial amendments and changes” to the legislation shows it and the Tánaiste “got it very badly wrong”. She claimed this was because the normal consultation process with unions was bypassed.

Mr Mulligan defended the department’s work, saying there was “fairly extensive consultation” including careful consideration of 145 written submissions.

Later Fine Gael TD Richard Bruton responded to various criticisms Ms O'Reilly made of Mr Varadkar, saying he did not agree with her "disparaging remarks" about the Tánaiste.

He added that Mr Varadkar was not there to defend himself and they should not have been put to an official to comment on.

Superfluous argument

His party colleague David Stanton made a number of suggestions for grounds of refusal that could be removed or changed. He said one reason for refusal - that an employer would have to re-organise work - is "superfluous" as it should be possible for this to be arranged.

Mr Stanton questioned the value of another of the grounds - that remote working could have a negative impact on performance, saying this was “subjective and very hard to argue against”.

He said another reason for refusal - an ongoing or recently conducted disciplinary process - should be removed.

“I don’t think that should be mixed up with the request for remote working,” he said.

Mr Stanton also suggested that the three month decision-making period for an employer on such a request should be reduced to one month.