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

Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

In a previous post, we considered various models for fulfilling the government’s recent promise to grant all employees the ‘legal right to work from home’. We concluded that the best way to ‘work it out’ would be to draw from a combination of the new protections for parents of young children contained in EU Directive 2019/1158 and existing annual leave provisions.

 

This post will elaborate on the valid reasons for refusing an employee’s request to work remotely, and a proposed enforcement mechanism. A third and final instalment will draw attention to three lingering concerns with the proposed right: the risks posed to worker solidarity, and to the rights of women and disabled people in the workplace.

 

Reasons for refusal

Obviously, not all jobs can be done effectively, or indeed at all, off-site. Certain customer-facing jobs in retail, hospitality and many other services, manual construction and manufacturing jobs, most healthcare and education provision, etc cannot be done remotely. This was already clear from the designation of certain jobs as ‘essential’ or ‘front-line’ during the pandemic lockdowns, where certain workers were permitted to continue to work on-site. Others were simply unable to work when physical workplaces closed, and instead received wage subsidies or the Pandemic Unemployment Payment. Thus any legal regime will therefore have to account for the nature of certain work, and the eventuality that a right to work from home cannot be extended to ‘all’ workers, notwithstanding Minister Varadkar’s initial comments.

 

There are two parallel but distinct concerns at play here. Some work physically cannot be done remotely - like manual construction work. Other work can be done from home, but only at significant cost in quality of delivery to the customer or service user. The prime example here is teaching: the initial pandemic lockdown and the current university experience show that teaching can be done remotely, but most stakeholders would agree that it is a fundamentally different, and lesser, experience for students. Our proposal would distinguish these two factors, for the sake of clarity.

 

Another distinction should be drawn between the nature of the work and the nature of the business. Certainly, customer-facing retail workers cannot work remotely; but that does not mean that the administrative, support and managerial staff in the same business need to be on-site too. It may well be easier for employers to issue blanket refusals to requests to work from home based on the nature of their business as ‘customer-facing’. But the law should be designed so as to accommodate as many workers as possible, and oblige employers to be more discerning in refusing requests. 

 

There will be other legitimate reasons for refusing a request to work remotely, like cost and security. Below is an list of what we suggest as valid reasons for refusing a work from home request, but we welcome further suggestions. A notable absence is any sort of ‘general’ or ‘catch-all’ provision. This was a deliberate omission. The model we envisage is one in which, like for unfair dismissal, the employer must point to one from a specified list of reasons for dismissing the employee, thus ensuring the burden is placed firmly with the employer. We believe that a ‘general’ clause is inherently open to interpretation favourable to employers, who generally have more power than employees in workplace negotiations/disputes in the first place. It could also disincentivise workers from challenging refusals, if they are unclear what counts as a valid reason in advance. Additionally, a general clause would undermine the point of having a specific list in the first place: if an employer can point to ‘any other reason’, then why not just have one general clause and dispense with the rest?

 

Valid Reasons for Refusal 

Recall that our model states that: an employee may request to work from home on any given day; no employee shall be subject to penalisation for making such a request; and where an employer refuses to grant the request to work from home in respect of any given day, the employer shall provide the employee with reasons for the refusal. Valid Reasons are limited to:

·      The request was submitted with less than 48 hours’ notice;

·      The employee has already worked remotely on 150 days or more in the previous 12 months;

·      Remote working would impose an unreasonable cost burden on the employer;

·      Remote working would impose an unfair burden on other employees working on-site;

·      The nature of the work is such that it cannot be done remotely;

·      Remote working would result in a significant diminution in quality of service for customers or service users;

·      Workplace health and safety requires employees be present on-site;

·      Data protection and security requires employees be present on-site;

·      Compliance with any other statutory requirements requires employees be present on-site.

 

So, we envisage that in the first place, an employee would notify their employer at least 48 hours in advance of their intention to work from home on a given day. Of course, this might work out more flexibly in practice (for example, they might wake up in the morning to find their child is sick, so must stay at home. If the employer is amenable, then there is no need to take sick, annual, or force majeure leave - just work from home). The point is that an employer is entitled to refuse a request purely on the grounds that they had less than 48 hrs’ notice. Similarly, if the employer wishes to allow an employee work from home notwithstanding the fact that they have exhausted their allotted stock of days, it is within the employer’s discretion to allow requests above and beyond the base entitlement. This is consistent with the status quo, in which many employers have their own internal policy on flexible working arrangements. The right acts as a floor, not a ceiling.

 

Enforcement

If an employer refuses a request to work from home they must offer reasons from the list set out above. For the right to mean anything in practice, the worker must be entitled to challenge the reasons offered. However, it seems to us that it would be unduly cumbersome for a worker to have to take a dispute to the Workplace Relations Commission for adjudication every time a request is refused, or to ‘tack on’ a number of refusals to some later claim like unfair dismissal. This is particularly so because refusals are likely to be one-off events within what is otherwise an ongoing employment relationship (although if an employee is dismissed for making a request, this could well be challenged as penalisation, as a dispute for adjudication by the WRC).

 

Instead, we propose this matter fall under the inspection regime within the WRC. Upon receipt of a complaint from an employee about a refusal to allow working from home, inspectors from the WRC would make contact with the employer, notify them of the complaint and request evidence to support the reasons offered for refusal. Although not an inter partes case between the employee and employer, the WRC may also request additional information from the employee. If the employer cannot justify its decision to the satisfaction of the inspector, the WRC may levy a fine or issue an order to the employer to adjust its remote-working policy. Thus the procedure is more like when a worker reports a breach of health and safety obligations. If there are repeated or widespread unlawful refusals within a particular workplace, the WRC may invite the parties to take part in its mediation or conciliation processes. This, we think, strikes the optimal balance between the practical realities of remote working requests, and the need for enforcement of the new rights. 

 

Conclusion

In summary, this post has clarified the circumstances in which an employer should be legally allowed to refuse a remote working request, and set out the practicalities of how a legal right to work from home might be enforced. We do not envisage it being actionable by means of inter partes litigation through the WRC adjudication process - an inspection model, with meaningful sanctions on employers found in violation of the law, would be much more practical in light of the frequency of remote working requests, occurring within an ongoing working relationship. Where a worker feels aggrieved by having their request declined, their employer should be obliged to justify the decision according to a specified set of reasons, to the satisfaction of the WRC inspectorate.

 

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 II’ (18 December 2020) https://tcdlaw.blogspot.com/2020/12/baby-youre-boss-at-home-giving_15.html