Restrictions on international travel: where things stand

 Oran Doyle, Trinity College Dublin

 

Introduction

There were no restrictions on international arrivals during the early stages of the pandemic. From May to December 2020, there were only minimal obligations to complete a passenger locator form. Beyond that, it was a matter of public health advice—as explored in the Ryanair case and previously on this blog. Since January 2021, the obligations have been steadily increased with obligations to take PCR tests applied to a widening range of countries, then obligations to self-quarantine, and now with the Oireachtas set to introduce mandatory quarantine at designated facilities for some international passengers. At the same time, the law has been tightened to ensure that visitors from Northern Ireland are subject to the same restrictions on their movements as residents in the state. Finally, at the end of December and start of January, the Government imposed a general ban on passenger flights from Great Britain.

 

In this blog post, I identify the core legal restrictions that apply to international travellers and how they have evolved. The post is not a critical analysis of the restrictions. But in that regard, I recommend Prof Conor O’Mahony’s excellent blog post on the constitutionality of introducing compulsory quarantine at designated facilities.

 

Passenger locator form

The COVID-19 Passenger Locator Form Regulations were made by the Minister for Health on 24 May 2020. These have been amended on several occasions (most notably to move from a paper-based system to an online system), but the core obligations remained the same and minimal. On or before their arrival to the state, international passengers must complete the COVID-19 Passenger Locator Form in respect of themselves or any children. The form seeks information about how international passengers arrived in the state and details of their place of residence for the following 14 days. If they change their place of residence or contact details, they must make reasonable efforts to provide this updated information in writing. 

 

PCR tests 

In early January 2021, the Minister for Health first made regulations imposing requirements on passengers arriving in the State from Great Britain and South Africa to have negative PCR tests. The regulations have been replaced and broadened on several occasions. The current law is found in SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021. These regulations came into force on 6 February 2021 and are scheduled to remain in force until 5 March 2021. At the time of writing, no extension regulations have been published but they likely will be.

 

Passengers who arrive in Ireland from any other state, excluding Northern Ireland, are required to do a PCR test and have a ‘not detected’ result prior to travelling to Ireland. Responsible adults are subject to obligations in respect of those in their care aged 7-18. Children under the age of 7 are not required to have PCR tests. On arrival in the state, the traveller or responsible adult must make the test result available to an immigration official. An international traveller who arrives in the State without a PCR test result is obliged to undergo a PCR test as soon as practicable and at the latest within 36 hours. These are all penal provisions, meaning that they are subject to criminal enforcement.

 

It is noteworthy that the provisions do not distinguish between citizens and non-citizens, and that having a ‘not detected’ PCR test is not a precondition for entry into the state.

 

There are several exemptions, including for those involved in international transport, those who are transiting through Ireland, and those who have been out of Ireland to perform the functions of an office held under the Constitution or an enactment, or as a member of the Oireachtas, a local authority, or the European Parliament. There is no specific exemption for Members of the European Commission, although they may be covered as staff members of an international organisation. Commissioners beware!

 

Home quarantine

SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021 also introduced obligations to self-quarantine.

 

The precise obligations to self-quarantine vary depending on whether the traveller has been in a category 2 state in the period of 14 days prior to arrival in Ireland. Brazil and South Africa were listed as category 2 states in the original regulations, but the Minister may add other states. As of 26 February 2021, the Minister had added a further 31 states. All states not listed remain category 1 states.

 

Travellers arriving from category 1 and category 2 states are all initially required to self-quarantine for 14 days. This is a penal provision. However, travellers from category 1 states are relieved of the obligation if they obtain a ‘not detected’ PCR test more than five days after their arrival in Ireland. Travellers from category 2 states do not benefit from this leeway. The self-quarantine must take place in the traveller’s place of residence, as specified in the passenger locator form.

 

There is a range of exceptions for travellers from category 1 states, including emergency reasons, the carrying out of critical repair and maintenance work, journalism, and participating in international sporting events as sanctioned by Sports Ireland. The range of exceptions for travellers from category 2 states is limited to ‘unavoidable reasons of an emergency nature to protect a person’s health or welfare’, to travel from her point of entry to her residence, to avail of a PCR test when requested in writing to do so by the HSE, and to leave the state.

 

Travel from Northern Ireland

During the most extreme lockdowns, it has been a criminal offence to leave one’s home without a reasonable excuse. There has been a list of specified reasonable excuses—including travel for essential work, exercise within 5km, etc—as well as a residual category of ‘reasonable excuse’. However, these restrictions only applied to people whose residence is located in the state. As a result, people resident in Northern Ireland were not subject to any movement restrictions once they crossed the border and entered the state.

 

This has been changed by SI 29/2021 as of 1 February 2021. Regulation 4(1) of SI 701/2020 Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020 as amended provides that any person who is not ordinarily resident in the state shall not travel within the state without reasonable excuse. The list of reasonable excuses for residents in the state to leave their homes now applies to non-residents travelling in the State. So, for example, a person resident in Northern Ireland might cross the border and then travel in the state for the purposes of attending a medical or dental appointment (regulation 4(2)(g)). Only one of the reasonable excuses is subject to a distance restriction, exercise within a 5km radius of a person’s place of residence. It follows that a resident from Northern Ireland can only exercise in the state if their residence in Northern Ireland is less than 5km from the border.

 

These changes have a wider application than just people from Northern Ireland travelling in the state: any person visiting the state is now subject to the same restrictions as those resident in the state.

 

Hotel quarantine 

At the time of writing, the Health (Amendment) Bill 2021 has been passed by the Dáil and is under consideration by the Seanad. If enacted, this will introduce a system of compulsory quarantine at a designated facility for two categories of international travellers: those arriving from ‘designated states’ and those arriving without a PCR test. Those from designated states must quarantine in the designated facility for 14 days, or shorter if they take a PCR test on the 10th day and it returns ‘not detected’. Those without a PCR test must quarantine for 10 days or until they receive a ‘not detected’ PCR test result. Anyone released from quarantine before the 14 day period elapses must then quarantine at home in accordance with the regulations described above. Where a PCR test is returned ‘detected’, the quarantine period is extended. 

 

If a person is subject to the quarantine requirement because she has a PCR test but it shows that the virus was detected, she may be discharged to home quarantine if a medical officer of health is satisfied that she can effectively isolate in her residence. Such a person would, however, still have committed a criminal offence by not providing a ‘not detected’ result to the immigration officer upon entering the state.

Those subject to these obligations will be required to pre-book themselves into designated facilities. 

 

Flight bans

In December 2020, the Government issued a NOTAM (notice to airmen) requesting operators to suspend passenger flights from any and all airports and aerodromes in Great Britain, with the exception of repatriation flights and flights that had obtained a special permission from the Department of Transport. This restriction applied from 21 December 2020 to 6 January 2021.

 

Oran Doyle is Director of the COVID-19 Law and Human Rights Observatory and a professor in law at Trinity College Dublin.

 

Suggested citation: Oran Doyle, ‘Restrictions on international travel: where things stand’ (4 March 2020) https://tcdlaw.blogspot.com/2021/03/restrictions-on-international-travel.html

Legislative Coupling in the COVID-19 Crisis - Disentangling the 5km Travel Restriction and the Eviction Ban

Editor's note: this post marks the first of a new series of posts on this blog.

We welcome proposals for blog posts. In particular, we will be running a series of posts on issues raised by vaccines at the end of March and would welcome further proposals on those topics. Please email oran.doyle@tcd.ie.

____________________________________________________________________

Rachael Walsh, School of Law, Trinity College Dublin

 

Introduction

The current 5km limit on travel from home for exercise has been identified by the Taoiseach as a candidate for relaxation in any revision of Level 5 restrictions in April. However, there has been media speculation that the Government is constrained in its ability to lift the 5km limit on travel for exercise by the legal underpinning for the current moratorium on evictions. It has been suggested that these issues were linked due to legal advice given to the Government that an eviction moratorium would not be constitutional if based on economic, rather than public health, concerns. 

 

This post explores that question. First, it analyses how these two issues are in fact linked in legislation; second, it assesses whether this approach is plausibly necessary to ensure the constitutionality of a moratorium on evictions in the context of ongoing Level 5 restrictions; third, it argues that they should be de-coupled. 

 

The Legislative Coupling of the 5km Limit and the Eviction Ban

The connection between the 5km limit and the general moratorium on evictions is made in the Residential Tenancies Act 2020. Section 2(1) of that Act provides that an ‘emergency period’ in relation to the tenancy of a dwelling will come into effect where the Minister for Health makes regulations imposing restrictions on travel outside a 5km radius of a person’s place of residence. The only such restriction currently in place is the 5km restriction on travel for exercise, but s. 2(1) is not so limited, suggesting the possibility of regulations imposing restrictions on movement from one’s residence for other reasons. Section 3 of the 2020 Act provides that during an emergency period, and for a prescribed period after its termination, notices of termination cannot take effect, meaning that evictions cannot take place. 

 

Some tenants are excluded from this heightened protection against eviction: first; where tenants (or other occupiers or visitors) are engaged in anti-social behaviour; second, where tenants (or other occupiers or visitors) act in a way that invalidates the dwelling’s insurance; third, where tenants use a dwelling for purposes other than residential accommodation without the permission of their landlord; and fourth, where they engage in behaviour damaging to the fabric of the dwelling or the property containing the dwelling. A further exclusion relates to tenants who are protected against eviction due to economic hardship flowing from the COVID-19 crisis pursuant to the regime established in the Residential Tenancies and Valuation Act 2020 and developed in the Planning and Development and Residential Tenancies Act 2020. 

 

Apart from these exclusions, the imposition of a 5km limit on travel from a person’s dwelling automatically triggers a ban on evictions. This approach is obviously convenient in bringing two public health measures into effect with one ministerial order. Inconveniently, however, it means that where no 5km limit is in place, the relevant emergency period ceases. Two distinct policy questions, both concerned with reducing mobility in the community, are inextricably tied, despite the fact that the appropriate response to both issues could be assessed differently in any public health evaluation and broader planning for a relaxation of restrictions. Either a relaxation of the 5km limit will come at the expense of security of occupation in the context of an ongoing pandemic, or the 5km limit will be retained in circumstances where other factors – such as mental health and well-being – might support a relaxation.

 

Assessing the Rationale for the Coupling 

The question then arising is whether any legal advice suggesting that the coupling of the moratorium on evictions with the 5km limit was constitutionally required (which has not been confirmed) is on a sound footing. We know that the previous and current Attorneys General advised that the general moratorium on evictions and rent increases that was introduced in the first lockdown was constitutionally suspect once the phased re-opening of the economy began in the summer of 2020. This prompted the introduction of the Residential Tenancies and Valuation Act 2020 in August 2020, which protected tenants who were likely to suffer eviction in circumstances where their ability to pay rent had been adversely impacted by COVID-19 crisis. 

 

However, the general moratorium on evictions in the Residential Tenancies Act 2020 was enacted during Ireland’s second wave of COVID-19. In such circumstances, a stand-alone public health justification (as distinct from an economic rationale) could clearly be articulated that would have withstood constitutional challenge. Article 43 of the Constitution permits the imposition of restrictions on the exercise of property rights to secure the common good and the principles of social justice. Those provisions have generally been interpreted in a manner that favours the public interest and defers to the judgment of the legislature, meaning that a court in the event of a constitutional challenge would be unlikely to second guess the political assessment that a moratorium on evictions was required to reduce mobility. 

 

As such, the linkage does not appear to be required to avoid a constitutional difficulty. The only obvious alternative explanation is that the issues were connected to kill two birds with one ministerial order – a benefit that would not appear to justify rigidly tying the fates of two distinct public health responses to a rapidly evolving pandemic. 

 

Conclusion

As has been pointed out by concerned housing organisations, the lifting of the 5km limit would be welcomed by most people as an important improvement to their overall wellbeing, but would be a disaster for tenants at risk of eviction, who would then face the challenge of finding alternative accommodation during a continuing lockdown. 

 

Working within the current legislative framework, the Government could adopt at least two different strategies to allow travel for exercise beyond 5km without at the same time opening the door to evictions. 

 

First, it could introduce an alternative 5km restriction on travel from one’s residence to satisfy s. 2 of the 2020 Act. Such an alternative - for example, a regulation prohibiting travel from one’s residence beyond 5km for scenic drives - might be capable of being justified on public health grounds during ongoing Level 5 restrictions. However, it would likely be politically unattractive to remove one restriction on travel from home only to replace it with another. Any restriction not raising that political concern might well be so marginal as to border on the absurd, as in the case of the example just given. 

 

Another possible approach would be for the Government to argue that the continuation of the overall prohibition on leaving one’s residence without reasonable excuse satisfied the spirit of s. 2 of the Residential Tenancies Act 2020. The 5km limit on travel for exercise is in fact a reasonable excuse to the general restriction on movement from one’s residence in Regulation 4(1) of the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020. However, s. 2 of the 2020 Act is very specific in referring to a restriction on travel beyond 5km from one’s residence as the triggering event for the eviction moratorium, meaning that such an argument might be rejected in the context of any legal challenge. 

 

Both these approaches have weaknesses and are at best stop-gap solutions that should be avoided given the ongoing nature of the COVID-19 crisis. Instead of papering over the cracks, the eviction moratorium and travel restrictions should be definitively de-coupled. Such an approach would be more rational, and crucially more stable, in the context of the likely continuation of Level 5 restrictions with ongoing revisions in the months ahead. In such a time of crisis, an eviction moratorium is more than capable of standing on its own feet in terms of constitutional justification.

 

Rachael Walsh is Assistant Professor at the School of Law, Trinity College Dublin, and is the author of ‘Property Rights and Social Justice: Progressive Property in Action’ (Cambridge University Press, forthcoming, August 2021). 

 

Suggested citation: Rachael Walsh, ‘ Legislative Coupling in the COVID-19 Crisis -  Disentangling the 5km Travel Restriction and the Eviction Ban’ (2 March 2021) https://tcdlaw.blogspot.com/2021/03/legislative-coupling-in-covid-19-crisis.html

Higher fines for travelling abroad: legal imperfections

Conor White

 

Introduction

On-the-spot fines for breaches of COVID-19 restrictions were introduced late last year. The Health (Amendment) Act 2020 signed into law on 25 October 2020 gives the Gardaí discretion to issue “fixed payment notices” instead of seeking a conviction in the District Court. This appears to have made it significantly easier for the Gardaí to fine people in breach of the penal provisions of regulations.

 

The current rates of fines ranging from €80 to €500 (depending on the “fixed penalty provision”) are laid out in statutory instruments.

 

The Taoiseach said in the Dáil on Wednesday 10 February that the Government intends to increase the rate for fines for travel abroad without reasonable excuse from the current amount of €500 to €2000. Bringing about this change is not as simple as signing a new statutory instrument and could run into other difficulties I explore here.

 

Background to Fixed Payment Notices

Fixed payment notices have been a fixture of Irish law for several decades. (The terms “fixed penalty notice” and “fixed charge notice” are also used.) They arise most often with minor road traffic offences where the Gardaí opt to issue a fine to those accused of an offence instead of prosecuting the offence. It is discretionary because the option to prosecute the offence remains. Additionally, if the fine is not paid within 28 days of receiving notice, the Gardaí then seek a prosecution.

 

There are obvious advantages to this mode of enforcement, explained by McDermott J in Kinsella v DPP [2018] IEHC 474:

 

The purpose of a fixed penalty notice is to provide an erring motorist with a quick and efficient method of acknowledging his wrongdoing and submitting to a lesser penalty than that which might be imposed after conviction. In doing so the motorist also avoids prosecution and the recording of a potential conviction for a criminal offence.

 

Further, no party needs to spend time in court or incur legal expenses. Many of these features are attractive during the pandemic.

 

Arguments against on-the-spot fines are also substantial: the lack of judicial involvement, the ease in which the authorities can impose them and the potential impact especially on people with lower incomes. Some research questions the efficacy of fines in the context of COVID-19 preventative measures.

 

The fixed payment notice creates a choice for the purported offender between paying a fine which effectively guarantees no criminal conviction, or challenging the circumstances of the alleged offence and potentially receiving a conviction, a higher fine and/or imprisonment. Most opt for the former.

 

Current operation of fines for travelling abroad

S.I. No. 29/2021 requires that a person “shall not leave his or her place of residence to go to an airport or port for the purpose of leaving the State without reasonable excuse”. Among the reasonable excuses are for work-related, educational, medical and urgent family reasons. S.I. No. 30/2021 sets a rate of €500 for a fixed payment notice for breaches of this provision.

 

Difficulties with moving to €2000

 

Setting the current maximum of €500 appears to be sensible as it does not radically depart from similar statutory provisions and it seems proportionate to the rest of the legislation. I explore some of the issues with changing this here.

 

(i) Maximum of €500 by law

The Minister for Health’s power to make a specific breach subject to fixed payment notices is provided by sections 31A and 31C of the Health Act 1947, amended by the Health (Amendment) Act 2020. The maximum amount that a Minister may set for a fixed payment notice is €500. An amendment will need to be enacted to permit the Minister to increase the applicable on-the-spot fine.

 

(ii) Legislative inconsistencies

Changing the legislation to increase the ceiling for these kinds of fines will change the punishment framework the Oireachtas has adopted so far. Section 31A(12)(a) of the Health Act 1947 introduced tiers for the courts to use when applying penalties on conviction, providing that subject to paragraph (b) of the same subsection which permits the court to consider aggravating factors, the liability on conviction is:

 

(i) in the case of a first such offence, to a fine not exceeding €1,000 or imprisonment for a term not exceeding one month or both,

 

(ii) in the case of a second such offence, to a fine not exceeding €1,500 or imprisonment for a term not exceeding 3 months or both, and

 

(iii) in the case of a third or subsequent such offence, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

 

These are clear instructions from the Oireachtas for the courts to follow when determining penalties.

 

Clearly €2000 is greater than the maximum fines for first and second offences. It undermines the logic of the legislation for having the on-the-spot scheme which can provide an efficient compromise for offenders, the Gardaí and the courts. This could be addressed by increasing the thresholds for fines on conviction, but there does not appear to be any demand for these thresholds to be increased for any offence other than for travelling abroad.

 

The government could decide to enforce travel abroad restrictions outside of the current framework and through legislation brought through the Oireachtas. If it is that the harm to society created by unexcused travel abroad is substantially more serious, a specific enforcement regime could be established. The current system for every other offence is then preserved.

(iii) Constitutional considerations

The use of fixed payment notices in relation to offences unrelated to the pandemic  has been relatively uncontroversial in the Irish courts. With fines usually not in excess of €200, litigation is not worthwhile. Much of the case law, such as in Kinsella above, is related to disputes over the service of notice of the fine. Increasing the scope for a fine of this nature to €2000 is uncharted territory.

 

Regarding the scope for potential constitutional issues, Articles 34.1 and 38.1 are relevant, though making any prediction or conclusion in this area is impossible.

 

Article 38.1 says that “No person shall be tried on any criminal charge save in due course of law” and as result provides accused persons with rights. The authors of Kelly (2018) have noted the lack of a clear judicial statement on the difference between a “criminal charge” and one civil in nature (at [6.5.241] onwards). The Supreme Court has outlined indicia suggesting something is a criminal charge, such as it being punitive, the risk of imprisonment for default of payment and features of arrest and detention. (See Kelly for a full discussion or this 2016 LRC Issues Paper, paragraphs 2.08 to 2.14.) For present purposes, the case law does not give a clear answer.

 

Article 34.1 requires that “Justice shall be administered in court”, meaning that there is an opportunity for a fair hearing in front of a judge. David Gwynn Morgan in 2004 suggested that with such a fining mechanism an accused may choose to pursue a line of argument of being “"pressurised" into renouncing his right to a trial before a court”.

 

Final remarks

Selecting the boundaries for fines highlights the difficulties of enforcing unprecedented public health policies to change human behaviour in a democratic country. Issues of efficacy and fairness, not discussed here, are especially important too.

 

Conor White is a member of the of the COVID-19 Law and Human Rights Observatory. He holds a BCL from University College Dublin and recently completed an LLM at the University of Cambridge.

 

Suggested citation: Conor White, ‘Higher fines for travelling abroad: legal imperfections’ COVID-19 Law and Human Rights Observatory (12 February 2021) https://tcdlaw.blogspot.com/2021/02/higher-fines-for-travelling-abroad.html

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

 Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

The government today published its strategy on remote working, foreshadowing legislation in this area by September 2021. In two previous posts (part I and part II), we discussed our preferred model for the government’s proposed ‘right to work from home’. We believe the government should legislate for a right to work remotely, following the model we have set out. However, it would be remiss not to mention a number of concerns about legislating for remote working. Some of these are identified in the government strategy; others are overlooked. A lot has been written elsewhere about risks of working from home to employee privacy, and to the regulation of working time. We have identified risks we think are underdiscussed: to worker solidarity and equality on the grounds of gender and disability. 

Carefully managed, remote working can bring benefits to workers, including women and those with disabilities - but if implemented badly, a statutory right to work from home may end up furthering exclusion and disadvantage of vulnerable groups. In other words, if this is for real, we have to get it right.

 

 

Solidarity

The pandemic has impacted groups of workers differently. Broadly speaking, ‘white collar’ office workers have been able to work remotely without significant disruption to income and are at much less risk of infection than those in healthcare, construction, retail, etc. Normalised remote working might reinforce this ‘two-tier economy’. In this context, it is particularly important to note there are distinctly gendered and racial elements to this divide: although statistics in this jurisdiction are not available, in the UK, 60% of women worked in jobs that could not be done remotely, compared with 40% of men. Many of these same jobs are occupied by migrant workers, who already face insecurity and discrimination in the workforce.

 

It seems reasonable that there be some sort of material compensation for those workers who cannot work remotely, to reflect the inherently greater risks they will shoulder (even after this particular virus is brought under control). Elsewhere this has been called ‘hazard pay’. Since we do not want to offer financial incentives for workers to ‘sell’ their right to work remotely to the employer, perhaps there should be higher sector-specific minimum wages for ‘front-line’ jobs.

 

In Part II, we said an employer should only be able to deny remote working to those workers whose actual job tasks demand they be on-site, rather than adopt blanket policies on the basis of the nature of that business. For example, a customer-facing retail worker obviously cannot work remotely, but an accountant or HR specialist in that business can. However, there are drawbacks to this approach: from the perspective of the business, it may impede the flow of information and ideas from the conditions ‘on the ground’ to those making managerial decisions. Worse, remote working staff may be unaware of abusive and unsafe working practices on-site (or more easily able to turn a blind eye), and it may be more difficult for on-site staff to report problems. There should be dedicated channels of communication between on-site and remote staff, using trade unions or other worker representatives as intermediaries.

On the subject of trade unions, we are concerned about the impact of remote working on union organising and collective action. For their part, ICTU has already welcomed the shift to remote working, and joined the call for workers to be given a right to work from home. However, we are concerned that it will be more difficult for workers to organise collectively - even to be aware of shared grievances, never mind collaborate to address them - without seeing each other in person. Workers might also be reluctant to communicate with each other and with trade union representatives, if remote working generates a ‘paper trail’ accessible to management. Some of these issues have already been identified by the UK Trade Union Congress, and ETUC has gathered evidence of employers misusing provisions of the GDPR to limit the ability of trade union organisers to contact workers by electronic means. Again, we see a need for engagement between management and unions to ensure all workers have access to effective representation, even while working remotely, and the freedom to operate confidential channels of communication between workers themselves, and with their representatives. Of course, this links into the more general privacy concern which has been identified elsewhere.

 

 

Gender equality

Women still carry the bulk of caring and domestic responsibilities, which they must balance alongside their obligations to the workplace. Far from being corrected by the presence of male partners at home during the pandemic, this has actually been exacerbated, with a majority of Irish women noting that their already disproportionate burden has only increased during the past three lockdowns. The result is that women have been less able to devote as much time to their professional work as their male colleagues, who are less encumbered by unpaid domestic labour. 

 

Childcare in Ireland is among the most expensive in the world, and there is no public system to speak of. What support the government does provide is limited by time, or income, or both meaning it is out of reach for a vast number of families for the majority of their child’s development. Similarly, at present in Ireland there is no legal obligation on an employer to pay women during their maternity leave, and in general Irish women only receiveabout 9 weeks of paid leave. On top of this, women who take longer maternity leave are perceived as less committed to their careers, are less likely to receive pay increases or promotions, and the risk of dismissal increases. Despite this, even where parental leave can be shared women still take more time off than their male partners, thus risking their own career advancement. The creation of a right to work from home appears to enable individual working women to compensate for these structural deficits without sacrificing their careers entirely.

 

The danger is that by increasing flexibility for women - which ought to improve their standing in the workplace - working remotely could become an expectation for women, that could be relied on in place of proper accommodation and policy in the areas of childcare and maternity leave, both significant barriers to advancement for women at work. Remote working offers an ‘easy out’. For the government, the creation of a flexible working arrangement for women prevents them from having to meaningfully engage with the lack of childcare infrastructure in Ireland: the need to provide this becomes less pressing when women are able to work from home and provide their own childcare. For employers who might otherwise have provided childcare, they may now simply expect female employees to exercise their right to work from home where before they might have had to provide some other flexible arrangement (or on-site childcare). Women themselves may feel under pressure not to take adequate parental leave because they can work remotely, with detrimental effects on children’s welfare and mothers’ health, as well as their professional development. Finally, as noted male partners are reluctant to take time off work for caring responsibilities, even where allowed to. This is potentially replicated with the right to work from home, where female partners will be expected to disproportionately work remotely in order to maintain their childcare obligations. 

 

Some of these fears are alluded to but not necessarily dealt with in the government strategy. While flexible working conditions can increase women’s involvement in the workplace, ‘flexible conditions’ must not become a by-word for the expectation that women will not insist on statutory rights, or where they are allowed to become a stop-gap for meaningful, structural change. Whilst the strategy does note the need to ensure equal uptake among genders, as well as gender awareness and equal access to promotional opportunities, it remains to be seen how these rights will be protected under the forthcoming legislation.

 

Disability

We said in part I that working from home should not be based on an extension of the current provisions for reasonable accommodation under the Employment Equality Acts. Among the dangers we identified is that employers may 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. We foresee a situation where a person with certain kinds of disability notifies their employer of the need for physical modifications within the workplace (ramps, lower desks, wider doorways, accessible bathrooms, etc), but the employer responds by allowing the employee to work from home rather than making these modifications. There is an obvious financial incentive on the part of employers to pursue this option, and a disincentive for workers with disabilities to insist on physical modifications for fear of being labelled ‘difficult’. The duty of reasonable accommodation does not apply where it ‘would impose a disproportionate burden on the employer’: our concern is that employers will argue the cost of physical modifications is ‘disproportionate’, given that the option of remote working is available. Of course, many people with disabilities have long been calling for greater provision for remote working and would benefit from it becoming more normalised; but it would be unacceptable to allow employers to thereby shirk their responsibilities to make physical workplaces more accommodating. That would lead to the further marginalisation of people with disabilities. This concern has been noted in the government strategy, but with no proposed solutions as of yet.

 

Conclusion

There is much more we could say about the promises and pitfalls of working from home. Throughout these posts, we have tried to emphasise that making remote working available to as many workers as possible could bring huge benefits - if workers are empowered to make the choices about how it operates, and protected from employers’ efforts to take advantage of remote working for their own financial benefit. There are risks associated with any changes in methods of production, and one goal of labour regulation must be to minimise the extent to which these fall on workers. As noted above, the government strategy does fall into some of the traps we have identified in this post. We call on the Department to reflect these concerns in the forthcoming legislation.

 

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 III’ (18 January 2021) https://tcdlaw.blogspot.com/2021/01/baby-youre-boss-at-home-giving.html

 

 

‘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