'Baby, You’re the Boss at Home’: Giving Employees the Right to Work from Home - Part I

Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

Before the Covid-19 pandemic, it was not widely appreciated how remote working could be a human rights issue, nor how popular it would become - a valiant promotional campaign from Fifth Harmony notwithstanding. Previous posts on this blog have highlighted the dangers remote working poses for the rights to safe working conditions and to adequate leisure time, but it is not all doom and gloom: there is a strong case to be made that a right to work from home (at the choice of workers) protects the rights to work and to safe working conditions (Article 23 UDHR), for those who would be excluded from the workforce by medical conditions or family circumstances that make them particularly vulnerable to Covid-19. It may also promote equality for people with disabilities, and probably for women: there is some (albeit mixed) evidence that the ability to work from home better facilitates women with greater caring  responsibilities, and encourages men to take on more of the childcare burden. 

 

Minister for Business, Enterprise and Innovation Leo Varadkar recently announced the government’s intention to create a legal right to work from home. He touted the results of his department’s consultation to the effect that most workers and employers want ‘blended working’ – ie to work from home some of the time. Ireland is not the only jurisdiction considering a legal right to work from home: Germany (€) is currently preparing legislation with much the same goals as Minister Varadkar indicated, with similar developments planned in Spain and Greece. Australia’s Fair Work Act 2009 already extends a ‘right to request flexible working arrangements’, including work from home, to certain employees. 

 

This post assesses how a right to work from could be given legal form, taking into account that workers do not want to be obliged to work from home all the time. We consider a number of models of employment regulation, ultimately settling on a proposal that combines regulatory modes for returning from parental leave, and annual leave. Part II, to follow, will examine some particularities of the proposal in more detail.

 

Modes of regulation

 

The first option open to the government is to base the right to work from home on non-penalisation – ie, that workers cannot be subject to retaliatory disadvantage for asking to work remotely. Various employment law statutes already provide for non-penalisation (for example, section 27 of the Safety, Health and Welfare at Work Act 2005), so the WRC and courts (and, we hope, employers) are familiar with the issues involved. On its own, however, a non-penalisation model would not accomplish very much. Employers might not penalise an employee for asking to work remotely, but may simply refuse the request. Evidence (€) suggests that in particular, female employees are more likely than their male counterparts to have requests in workplace negotiations refused. A non-penalisation clause may not be enough to capture the ‘soft penalisation’ of negative attitudes towards assertive women, nor fear of such backlash. A non-penalisation clause will be vital to whatever legislation is produced, but there must be more.  

 

Another option is to make facilitating remote working a matter of workplace health and safety (as pointed out above, remote working does help protect workers’ health during the pandemic, provided employers provide appropriate equipment etc to ensure the home environment is suitable for working). However, this approach would not fulfil the government’s commitment to an individual right to work from home, exercisable at the employee’s choice. A duty-based approach risks suggesting to employers they make working from home mandatory – or that by offering remote working they could avoid other responsibilities to make the physical workplace safer.

 

An individual right could be based on an extension of the current provisions for reasonable accommodation under the Employment Equality Acts. These require that an ‘employer shall take appropriate measures … to enable a person who has a disability … to participate or advance in employment … unless the measures would impose a disproportionate burden on the employer.’ In principle, this includes allowing remote working. At the most minimal, the proposed legislation could simply broaden what counts as a disability for the purposes of reasonable accommodation to all medical conditions that make people more susceptible to Covid-19 (which would include workers whose family members are susceptible, due to the prohibition on discrimination by association under section 6). However, this seems to unnecessarily medicalise the issue, without living up to the government’s stated aim of allowing all workers to work from home. Further, a general extension of the entitlement to reasonable accommodation to all workers would introduce significant uncertainty into relatively settled employment equality law. ‘Stretching’ the statutory terms of ‘appropriate measures’ and ‘undue burden’ in this way may have unforeseen consequences for protections of persons with disabilities, which might undermine the benefits to them of normalising remote working. There is also a danger that employers would seek to rely on remote working to discharge their obligations to provide reasonable accommodation in a way that could exclude people with disabilities from the physical workplace.

 

Our proposal

 

As far as we can see, the most viable model would be based on an extension of flexible working arrangements for parents. The timing is very convenient, in light of Ireland’s obligations under EU law: Directive 2019/1158, which must be implemented by August 2022, significantly extends the rights of workers returning from parental leave protected by Directive 2010/18. The relevant sections of the new Directive require:

 

Member States shall take the necessary measures to ensure that workers with children up to a specified age, which shall be at least eight years, and carers, have the right to request flexible working arrangements for caring purposes … Employers shall consider and respond to requests for flexible working arrangements [and] shall provide reasons for any refusal of such a request or for any postponement of such arrangements.

… [T]he worker shall have the right to return to the original working pattern at the end of the agreed period. The worker shall also have the right to request to return to the original working pattern before the end of the agreed period where justified on the basis of a change of circumstances. The employer shall consider and respond to a request for an early return to the original working pattern, taking into account the needs of both the employer and the worker.

 

Directive 2019/1158 defines ‘flexible working arrangements’ to include ‘remote working arrangements’. The Directive also includes protections against penalisation and discrimination for requesting flexible working arrangements. 

 

The Commission has devoted significant attention to promoting ‘work-life balance’ across the Union. Given that Ireland is effectively obliged to implement a right to work from home for parents of young children by 2022 anyway, it seems like an obvious opportunity to extend those protections to all workers. There is no issue here from an EU law perspective. The Directive sets a floor of rights: so long as parents of children up to age 8 have the right to work from home, Member States are free to give that right to as many other workers as they like.

 

What is missing from the Directive is a specific standard for the reasons offered by the employer for refusing the request. It seems compatible with the Directive for Ireland to adopt legislation requiring employers to accept such requests absent specific reasons, like unreasonable financial burden on the employer, or the nature of the work involved. In such circumstances, it seems sensible to give workers a means to challenge the veracity of those reasons before an independent body, and place the burden of establishing those reasons on the employer. This will be discussed further in Part II.

 

The Directive refers to the need to allow workers to return from their flexible working arrangements earlier than the period for which those arrangements were agreed with the employer. This provision seems to have been designed with the position of new parents in mind - eg that parents of young children would request three months of remote working during the school holidays, and then return to the office in September. However, this does not really suit the preferences of the workforce, shaped as they have been by the experience of remote working during the pandemic. Given the desire for remote working some days a week, with a mixture of remote and on-site working on a week-to-week basis, additional flexibility could be offered by drawing on the existing provision for annual leave.

 

Employees in Ireland and across Europe have the right to a minimum of 4 weeks paid annual leave. In Ireland, these take the form of a ‘stock’ of days that employees can (by and large) take at any time, provided they give their employer sufficient notice. We suggest giving employees a stock of at least 150 days of working from home per annum, which can be taken at the employee’s discretion, subject to giving their employer 48 hours’ notice. In practice, this means an office worker could notify her employer on a Friday afternoon what days she intends to work from home the following week, which on average would be 3 days out of 5. Unlike annual leave, however, we do not see any need for workers to receive the equivalent of ‘holiday pay’ where they do not take advantage of their full quota of remote working days. Although at first glance it seems desirable to allow workers to ‘sell’ their remote working days back to an employer who really wants them on-site, it is hard to reconcile this with giving employers the right to refuse WFH requests on the basis that it would put an unreasonable financial burden on the business.

In summary, then, we propose a ‘right to work from home’ that consists of the following:

• Employees may request flexible working arrangements of any kind without penalisation nor discrimination
• In particular, employees are entitled to take up to 150 days working from home per annum, provided they give at least 48 hours’ notice
• Employers may refuse to allow an employee to work from home on any given day, provided they give the employee specified reasons for this refusal (discussed further in Part II)
• Employees are entitled to challenge the refusal to an independent statutory agency, in which circumstances the burden on justifying the refusal lies on the employer (discussed further in Part II)

 

Niamh Egleston is a Research Assistant at the School of Law, Trinity College Dublin and recently completed an LLM at the London School of Economics. 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory.

Suggested citation: Niamh Egleston and Alan Eustace, ‘“Baby, You’re the Boss at Home”: Giving Employees the Right to Work from Home - Part I’ (11 December 2020) available at https://tcdlaw.blogspot.com/2020/12/baby-youre-boss-at-home-giving.html