Q&A: How can your employer block a request to work from home?

Tánaiste Leo Varadkar has unveiled plans to give people the right to request remote working and the Government hopes to have the new law in place as early as the summer. But how will workers apply? What are the grounds under which employers can refuse? And what happens if they do?

How will I be able to apply for remote working?

Workers who are in their jobs for at least six months will have to make an application in writing to their employer requesting that they work from home. The employee’s written proposal for a remote working arrangement will have to include the planned location, start date and the number of days to be worked remotely.

The employee could also have to include a “self-assessment of the suitability of the proposed remote working locations regarding specific requirements for carrying out the job such as data protection and confidentiality, minimum levels of internet connectivity, ergonomic suitability of proposed workspace and any equipment or furniture requirements.”

The Department of Enterprise said such self assessment requirements will be a matter for employers to specify in their remote work policy.

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How long does the application process take?

Employers will have to respond to a worker’s request within 12 weeks. The employer can say yes; make a counter offer - with the worker getting a month to consider this; or refuse. If they refuse this the employer must offer a good reason for why and be prepared to defend this in a possible appeal.

So what are the reasons your boss may use to refuse a request to work from home?

There are 13 grounds for refusal but the draft legislation leaves open the possibility there may be other potential grounds to say no.

Those listed are:

1. If the nature of the work does not allow for it to be done remotely;

2. If the employer cannot reorganise work among existing staff;

3. Where there is a potential negative impact on work quality;

4. If there is a potential negative impact on performance;

5. In cases where the employer has planned structural changes;

6. When there is a burden from additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer's business;

7. Where there are concerns about the protection of business confidentiality or intellectual property;

8. In instances where there are concerns about the suitability of the proposed workspace on health and safety grounds;

9. If there are concerns about the suitability of the proposed workspace on data protection grounds;

10. When there are concerns over the internet connectivity of the proposed remote working location;

11. If there is an inordinate distance between the proposed remote location and on-site location;

12. If the proposed remote working arrangement conflicts with the provisions of an applicable collective agreement;

13. In cases where there is an ongoing or recently concluded formal disciplinary processes.

What is being said about these reasons?

Patricia King, the general secretary of the Irish Congress of Trade Unions (Ictu) has said: “The 13 sweeping and subjective criteria … do not strike a balance between employer and employee needs.” Labour Senator Marie Sherlock claimed: “As it stands the odds are stacked against workers”.

Mr Varadkar, the Minister for Enterprise, said there has to be a list “but it’s not just a case of an employer being able to give any old reason [for refusal]. It’ll have to be a specified reason and that reason will have to stack up.”

This is because there is an appeals mechanism through the Workplace Relations Commission (WRC).

So what happens if my employer says no?

People will be able to make an appeal. Employers may have internal appeals processes and in those cases that will be the first place an appeal is made. Applicants whose workplaces don’t have an internal appeals process – or those whose internal appeal is refused – will be able to bring their case to the WRC or the Labour Court.

How long will an appeal take and what happens if it is successful?

There are no time limits for the appeals process set out in the heads of the Bill but it is something Mr Varadkar has said can be considered for the final legislation. Some in the Opposition have raised concerns about delays in the WRC hearing the cases it currently deals with. It is estimated that all cases in the WRC’s current backlog will be scheduled within 10 months.

Mr Varadkar said some delays are due to the Covid-19 pandemic and new staff and decision officers are being appointed to the WRC which will help it catch up with the backlog. He said that if an appeal is successful a WRC decision will be binding and there may also be compensation on offer to the employee of up to a month’s pay.

On whether an employer can be ordered by the WRC to allow remote working if an appeal is successful, a Department statement said: “if a complaint is well founded, the WRC can decide to give compensation or direct the employer to return a formal decision in line with the framework. The issue will be further worked through with the Attorney General’s office.”