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Joint Committee on Enterprise, Trade and Employment debate -
Wednesday, 9 Feb 2022

General Scheme of the Right to Request Remote Working Bill 2021: Department of Enterprise, Trade and Employment

Today's business is pre-legislative scrutiny of the right to request remote working Bill 2021, recently referred by the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Varadkar, for such scrutiny to the committee. He requested that it be done this month. The Bill aims to provide a legal framework around which requesting, approving or refusing a request for remote work can be based. It also aims to provide legal clarity and procedures for employers on their obligations when dealing with such requests. Subject to the views of members, I anticipate the committee may need to consult more interested parties on this matter ahead of preparing a report. Many people have been anticipating this Bill and there is huge concern about the way work is changing over recent years, especially with the pandemic.

I am pleased to have the opportunity to consider this matter and I welcome online officials from the Department of Enterprise, Trade and Employment: Mr. Dermot Mulligan, assistant secretary, workplace relations and economic migration; Ms Wendy Gray, principal officer, employment rights policy unit; and Mr. Mark Doheny, employment rights policy unit.

I will explain some limitations regarding parliamentary privilege and the practices of the Houses with regard to reference witnesses may make to other persons in their evidence. The evidence of witnesses who are physically present or within the parliamentary precincts is protected by absolute privilege, pursuant to both the Constitution and statute. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if a witness's statements are potentially defamatory in relation to an identifiable person or entity, that witness will be directed to discontinue his or her remarks. It is imperative he or she complies with any such direction.

The Department's opening statement has been circulated to all members. To commence consideration of this matter, I invite Mr. Mulligan to make his opening remarks.

Mr. Dermot Mulligan

I thank members for the invitation to attend the committee to discuss the right to request remote working Bill 2021. I welcome the opportunity to do so and thank the committee for facilitating pre-legislative scrutiny on this important matter.

I will give some background and context to the Bill. The increase in home working since March 2020 as a result of Covid-19 has brought remote working to the forefront of working life in Ireland and globally. Though the adoption of remote work was already increasing in Ireland, Covid-19 has greatly accelerated this trend, making remote work a central part of the workplace today and into the future. While this arrangement has been beneficial for some, it is important not to conflate the experience of home working during the Covid-19 pandemic with remote working under a regular scenario. The sudden introduction of home working often resulted in less than ideal working conditions for both employers and employees. Significant challenges have been faced over this period, including those regarding the remote working infrastructure, suboptimal home working environments and the availability of early learning childcare and schooling.

Despite these substantial challenges, interest in remote working in the long term remains strong among employees. Research carried out in October 2020 by the NUI Galway Whitaker institute and the Western Development Commission found that 94% of participants would like to work remotely, at least some of the time, after the crisis. This figure is almost 10% higher than it was in the first phase of the research, published in May of the same year. Many workers place huge social value on workplace flexibility, and remote working plays a central role in enabling that increased flexibility to support a better work-life balance.

There has been a significant long-term shift in attitudes to remote work among both employers and workers throughout the country. Acceptance of remote work is high. Remote and hybrid working is here to stay. While remote working should never be used as a substitute for any form of childcare, it provides families with more flexibility around which they can base their early learning and childcare choices.

The 2020 programme for Government contains several commitments on the topic. Remote work is already a key consideration in Government policy documents such as the national economic plan, the climate action plan, the town centre living initiative and the smarter travel policy. The State is committed to increasing remote work adoption in Ireland through removing barriers, developing infrastructure, providing guidance, raising awareness and leading by example in this area.

The Government’s remote work strategy, published in January 2021, aims to build on the progress made in the adoption of remote work over the Covid-19 crisis period. The strategy is built on three fundamental pillars: first, creating a conducive environment; second, developing and leveraging remote work infrastructure; and third, building a remote work policy and guidance framework. The strategy sets out plans to strengthen the rights and responsibilities of employers and employees and to provide the infrastructure to work remotely. It sets out clear guidance on how people can be empowered to work remotely away from the employer’s premises.

In the context of pillar 1, creating a conducive environment, a commitment was made to legislate to provide employees with the right to request remote work. This is one of the key actions of the strategy. Prior to seeking Cabinet approval to draft the Bill, the Department of Enterprise, Trade and Employment undertook a full public consultation that sought the views of relevant stakeholders and members of the public on key policy questions around the design of the scheme. In total, 175 submissions were received with a good mix of views from business and employee representative bodies and individual workers and employers.

In addition to the public consultation, the Department undertook an international review to get a better understanding of how remote working legislation operates elsewhere. There is no one-size-fits-all model. Some countries have a similar right to request remote or flexible working, more provide for remote working only by agreement between employer and employee, and many have no legislative framework in this area.

The definition of flexible working is much broader than remote work and may include the possibility of starting or finishing at different times, doing compressed hours, and having access to flexitime and shared working options. This Bill deals with remote work.

In relation to the key parameters, the policy objectives of the legislation are essentially to provide a legal framework around which requesting, approving or refusing a request for remote work can be based. It will also provide legal clarity to employers on their obligations for dealing with such requests.

The legislation will do a number of things. It will provide a right for employees to request remote working, oblige employers to state business grounds for refusal of such a request and provide a right of appeal to the Workplace Relations Commission, WRC, where an employer has failed to respond to a request or to provide business grounds for refusal of a request.

The legislation will also provide for the development of codes of practice to provide guidance to employers, employees and their representatives on the general principles that apply in the operation of remote working and to aid with the implementation of the new legislation. It will oblige employers to prepare a remote working policy specifying the manner in which remote working requests of their employees will be managed and the specific conditions that will apply to remote working generally within the organisation. The timelines for responding to a request shall also be set out in the employer’s remote work policy but shall not be more than 12 weeks. The legislation will provide that an employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to request remote working and provide that the WRC may at the request of the Minister prepare a code of practice for the purposes of any section of this Bill.

Remote working does not work for everyone or for every organisation so the approach taken in the legislation is a balanced one. It is recognised that not all occupations, industries or particular roles within an enterprise will be suitable for remote working. Therefore, even in cases where employers want to support workers and be as flexible as possible, it will not always be an appropriate or suitable option. It is clear that the interest in remote working in the long term remains strong for a lot of workers and many will want to continue with at least some remote working after the pandemic.

Regarding eligibility, an employee will be required to have worked for his or her employer for a period of six months before he or she is eligible to submit a request for remote working under the Bill. This is to allow time for an employment relationship to develop between the employer and employee and is a feature in some existing company-level remote working agreements. While we do not have a statutory maximum probationary period in Ireland, it is in line with the cap placed on statutory probationary periods of six months under the transparent and predictable working conditions directive. It is also half the qualification period of the Unfair Dismissals Act at 52 weeks, which will ensure that those on shorter fixed-term contracts can also submit requests for remote working.

Many companies already offer remote working so the Bill is not intended to undermine existing remote working agreements that may offer more favourable terms overall, many of whom offer remote or hybrid working schemes from day one of the employment relationship. The Bill is primarily intended to act as a floor-level protection and ensure that workers, particularly those employees who currently have no access to remote working, will have an entitlement to make a request to do so. Employers will be required to provide grounds when refusing to facilitate an employee's request. The Government wants to give employees a choice. The Tánaiste has said on several occasions that as long as the business gets done and services are provided, employers should facilitate remote working where they can.

It was important to identify possible examples of business grounds for refusal in the legislation. The new law also provides for a time limit for an employer to return a decision relating to a request from an employee. The employer can set out its own specific time limit within its remote work policy but it must not be more than 12 weeks. Where the employer has diligently completed the assessment process and any appeal has been heard, the employee will be required to wait a period of 12 months to submit another request provided he or she is in the same role. If an employee moves to a new role within the company, he or she may submit a new request.

The legislation provides that all workplaces must have a written statement that sets out the company’s remote working policy. This policy will specify the manner in which remote working requests are managed, the timelines that will apply to deal with a request and the conditions that will apply to remote working generally within the organisation. We will work to minimise the burden of this new requirement on employers. Information will be provided in the form of templates for remote work policies to assist employers develop their own policy and to help them identify the types of information and procedures that should be outlined in the policy. The legislation provides for the development of codes of practice to provide guidance to employers, employees and their representatives on the general principles that apply in the operation of remote working and to further aid with the implementation of the new legislation.

As with other statutory employment rights, where an individual believes he or she is being deprived of rights to which he or she is entitled under the remote working Bill, he or she will be able to refer a complaint to the WRC where the matter can be dealt with by way of mediation or adjudication leading to a decision that is enforceable through the District Court. WRC inspectors can also be asked to investigate certain breaches. We are currently looking further at the legal issues related to strengthening the redress provisions and a right of appeal and are taking legal advice on the matter.

This landmark legislation is the first of its kind in Ireland. The Government has attempted to take a balanced approach in bringing forward the Bill. Not all occupations, industries, or particular roles within an enterprise will be appropriate or suitable for remote working, for example, construction workers, nurses, doctors, waste collectors, etc. Calls to introduce a blanket right to remote working are not realistic. However, the scheme is designed so that all employers must consider the scope for remote working in all roles in formulating their remote working policy. Some concerns have been raised regarding how remote working can impact people differently depending on gender with care burdens and reduced visibility of remote workers having potentially higher levels of negative impacts for women in the workplace. I emphasise that the scheme is a work in progress that introduces a statutory framework around requesting, approving or refusing a request for remote working that can be adjusted over time. In addition, as workplaces return to more normal pre-pandemic status and remote working is properly introduced, we will keep practice under review. We are happy to answer any questions members may have.

I thank the witnesses for appearing before us. I am very heartened to know I am not the only person who says remote workly when I mean work remotely. It is an easy mistake to make but I am glad I am not alone in occasionally getting that confused. Mr. Mulligan said the Department is looking at strengthening the right to appeal. I really welcome that. There is no point in us pretending that this legislation has been heralded and lauded, in particular by those representing the interests of workers, because it has not. The legislation has been subject to quite robust criticism from people who represent workers for a living. The fact that the Tánaiste said he is open to amendments is welcome because I will have a considerable number. I sincerely hope they are received in the spirit in which they will be drafted and tabled, namely, being constructive and ensuring we get this right because we need a statutory sick pay scheme. I have said it previously but I will say it again. In a pandemic, a statutory sick pay scheme is a very effective and important instrument of public health. We saw that during the pandemic because we did not have one.

I hope Mr. Mulligan takes my comments and questions in which the spirit in which they are intended but I was very disappointed when I read this legislation. I will be straight with him. I share the concerns of my former colleagues and comrades in the Irish trade union movement. Does he believe the 13 sweeping and pretty subjective grounds for denying a remote working request strike the necessary balance? ICTU said that this legislation will be judged on whether workers have confidence that it compels an employer to be fair. The fact that the reasons for refusing have been codified and outlined and are writ very large in the legislation is cause for concern. Does Mr. Mulligan think it strikes the right balance between employer and employee needs or is this one of the sections the Department will review along with the appeal mechanism?

Mr. Dermot Mulligan

Regarding the right to appeal, the Deputy is correct. The Tánaiste has asked us to look to see how we can enhance the wording there.

It is in the context of an employer-employee relationship. The question is how much can we influence this and to what extent we will interfere with it. Many employers and employees make their own contractual arrangements. We are very actively looking at the issue. It is very definitely a work in progress.

With regard to the 13 grounds and whether the correct balance is struck, this is something we will look at. I am aware we have looked at a number of countries where the number of grounds varies from five to eight. We have included 13 in our proposal. It is something we will look at. There is a point at which it is not so much a question of the number of grounds but what the sense of it is. We will be looking at it again and taking on board many of the views that were expressed on the publication of the general scheme and that will be expressed today in the hearing. We are looking at getting the balance right. We want to create a framework with a right for employees to request remote working and employers then have to respond in a reasonable way. How we set up a framework for this is what we are teasing out at present.

I welcome that the Department is open to looking at it. We only have to look across the water to see how the legislation is working in Britain. It is reviewing it on the basis that the eight grounds there represent a situation whereby all someone has the right to is to be in a bad mood about not having a request for remote working granted. To be honest this is what is most disappointing. I would have assumed the Department looked at other jurisdictions but it did not look at what is happening in Britain and see the difficulties it has for exactly the reasons the Department is proposing to stitch into the legislation.

I have a question on the right of appeal. At present, as I understand, the appeal is to the WRC. This is not for having been refused but because the employer did not say why the request was refused. I will be straight with the witnesses, and I have a fair amount of experience in this, employers are never shy about telling workers why they cannot have what it is they might be looking for. I do not think the Department is fixing a problem that actually exists with this.

The problem arises because there is no assessment tool for objectively managing why something will be refused. Employers have been given a suite of options to tick a box and pick from the 13 reasons to say "No". What has not been given to the worker is the right to go to the WRC and say, for example, the employer has refused the right to remote working because he or she has determined the person lives too far away. The person may live in the same postcode but this cannot be offered as a reason. Do the witnesses see where the difficulty with this is? Do they see that coming from this position makes it very difficult? I read this as 13 reasons someone cannot have remote working. Workers read this as the Tánaiste listing the reasons people cannot have remote working. This policy should be positive. It should be about granting it to the maximum extent possible. I do not accept what Mr. Mulligan said in his opening remarks about the need to reinforce to people that some jobs cannot be done remotely. People know this. They are not foolish. A nurse working in the emergency department in Beaumont Hospital this morning does not imagine for a minute that she can do her job remotely. She knows. These are not the people who request remote working.

Specifically on the right to appeal, Mr. Mulligan says the Department is examining it. From what perspective is it being examined? What type of changes is the Department looking at making? Is it looking to ensure this will be rebalanced? In my opinion it is not balanced at present. It is very much out of kilter and balanced in favour of the employer. Is this what the Department is looking at with regard to the appeal? Is it that it will keep the 13 grounds but include a reinforced appeal? Is it looking at dropping some of the 13 reasons for refusal?

Mr. Dermot Mulligan

I thank the Deputy. We are looking at the number of grounds, the wording of the grounds and the grounds for appeal. They all function together in an integrated way. It is probably less important what the number of grounds are and more important what the wording is and what the sense of all of this is. The grounds are there at one level as indicative but not exclusive.

With regard to the right to appeal to the WRC, as I mentioned we are trying to find a balance in the employer-employee relationship and to find the right balance so the employee has the right to request and the employer has the right to refuse if there are reasonable grounds. This is the balance we are trying to strike.

Does Mr. Mulligan not see that by not giving the worker a right to test what the employer is saying, it is very much tilted in favour of the employer? It is the equivalent of what your Ma would have said to you years ago: "Just because I said so". This is effectively what it is. Let us be honest, it is regrettable we are at the stage where something that is so desperately needed by workers is being considered as inadequate to deal with it. It would have been better if we had started from a better place but we are where we are. I strongly encourage the Department to look at rebalancing this in favour of workers. There is not a person I have seen, as yet, certainly from speaking to people in the trade union movement and from what they have said publicly, who believes this will deliver for workers.

I want to speak about the appeal mechanism. Under the legislation people have to wait for six months before they can apply. Then the employer has a further 12 weeks to consider it. This means it will be nine months later. Then people can lodge an appeal to the WRC. From my understanding it can take anything from ten to 12 months before it will be heard. It could go faster and sometimes people can be lucky with the WRC. However, it will not go any faster than six months. This means it will be already well over a year before a worker can access a final determination on whether he or she can access remote working. Mr. Mulligan outlined all the reasons people need remote working. It will be a year when people will have had to juggle their childcare arrangements. It is a year in which they will have had to commute when perhaps they should not have needed to. When the Department is looking at rebalancing this and the appeals mechanism, is it the intention to include as part of the appeal the grounds upon which a worker was refused? At present how it is written does not effectively give a worker this right or anything close to it.

Ms Wendy Gray

I thank the Deputy. As Mr. Mulligan said, it is one of the issues we are looking at. It will be the reasonableness of why it was declined. One of the issues we had looked at is the scenario where potentially an employee might say he or she would like to work from Spain or another jurisdiction. This is the reason distance is included. It is not for the local area that an employer would refuse. Absolutely the reasonableness of the refusal would definitely be something that we will look at in terms of being able to appeal it as would whether the WRC would be able to adjudicate on it. It is really with regard to another jurisdiction. Because it is so popular we may have people saying they would like to work from a beach in Spain. This is the distance issue and this is why some of the issues are in there. We are taking advice on the reasonableness of these issues and whether an adjudicator can look at them and say it is absolutely not reasonable. This is something we want to work on.

It is not in any way clear from the legislation that it is referencing Spain or anywhere outside the jurisdiction. It relates to some sort of a unspecified distance requirement. The Department does see the difficulty with this. Workers could be working from just down the road. They could be working in the next building. They could live in the next building and choose to work remotely for whatever reason or want to work remotely. The employer can refuse it and the grounds of distance can be cited by the employer but then never be tested. There is no point in going to the WRC if it cannot test the reasons the person is being refused and only the fact the person has been refused. A worker could walk into an adjudication and the employer will say he or she has been reasonable and is not required to do anything else under the law. The worker will say it is unreasonable. The WRC then has to make an adjudication on the basis of the request only and not the reason for refusal. I welcome the fact the Department is looking at it. I will say again I regret the fact it was not looked at in advance.

I and many others have said there are better ways to make this work.

Given there are such long waits to get cases dealt with in the WRC, which everyone would acknowledge, and it is probably testament to the good work it does that people are queuing up to have their cases dealt with by it, does Mr. Mulligan accept that enforcement of the legislation is weak and needs to be strengthened? It would be helpful for any worker watching these proceedings to understand where the Department is coming from on this Bill. Given the waiting period and time involved, if it is accepted an employee could end up working in his or her work location for a year and a half while his or her appeal application for remote working is being considered, is the Department examining a way to speed up that process, or considering putting in place a clearing mechanism in place in advance of the legislation, or will it remain that an appeal would be referred to the WRC but additional tests of reasonableness may be added?

Mr. Dermot Mulligan

I am not sure I understand the Deputy's questions in terms of speeding it up.

Let us say the legislation is passed tomorrow.

The Deputy's time is up.

Can I get a answer to this question?

Yes. I ask the Deputy to be brief.

I will not use my allotted time later as I will have to leave and I apologise for that. In the event that a worker seeks to access their rights under this legislation, he or she could have to wait for a year an a half before getting a result on his or her appeal. Is the Department examining a mechanism whereby that might be speeded up, or is it simply considering the reasonableness, or otherwise, of the request as the test and that being added but that the procedure would still be that the appeal would be referred to the WRC?

I ask Mr. Mulligan to give a brief response.

Mr. Dermot Mulligan

On the question of the logistics around dealing with any appeal and what would need to be put in place at WRC level, all of that will depend on the shape of the Bill, when enacted. There are many different possibilities on the right of appeal. We have proposals in the general scheme of the Bill, as published, as to what the right of appeal would be. If it is different from that, the implications for the workload of the WRC would be different. There would be a whole other set of considerations to think through in terms of logistics to cater for that. It depends where we end up with the shape of the Bill, when enacted.

I thank Mr. Mulligan for that. The next person who has indicated to speak is Senator Crowe and he has seven minutes.

I welcome the Bill but there are a number of issues with it. This should be a good news story but there are too many flaws in it. As an employer, I believe it is too heavily stacked against the employees in many cases. That can be noted from the first contribution. It gives rise to too many questions and too much uncertainty. Companies naturally need to monitor their employees by some method. What is proposed is a little over the top. I will give a few examples. At this stage a number of issues arise. For example, will employees be entitled to recoup costs from their employer for setting up work from home stations in terms of equipment, including laptops and printers, and for the energy costs incurred? A major issue in west Galway is the roll-out of broadband, which leaves people there at a significant disadvantage. Has consideration been given to the fact that many employees do not have access to the required broadband standard, which would leave them at a significant disadvantage?

While the past 18 months to two years have been different, from speaking to employees in Galway, I would have concerns about support for employees working from home full time with respect to mental health supports. Larger employers or companies are rolling out teams, including a mix of mental health aid with occupational health nurses and voluntary representatives as a point of contact. I would be concerned to ensure an appropriate format for that would be in place for employees and that there would be an element of mental health assistance and better supports for them. Does Mr. Mulligan consider more needs to be done for the employee and that it is too easy for an employer to refuse an employee's request to work from home on any grounds the employer might want to give? I would raise the issue of the well-being of employees and he might address that point first.

Mr. Dermot Mulligan

I spoke earlier about the need for us to strike a balance between the employer and his or her rights, responsibilities and interests and the employee and his or her rights, responsibilities and interests. It is a matter of trying to find that balance. I hear what the Senator is saying in terms of his view on where that balance lies at present. We are trying to provide a legal framework to give employees, for the first time, a right to request remote working, to provide a legal framework to allow that conversation to take place between employers and employees and, generally, and this is very much to the fore of our minds, to implement our making remote work policy. We want to promote remote working. It has many benefits for regional and rural Ireland, as we have seen. That is very much to the fore of our minds as we develop this policy. We seek to promote remote work to secure the benefits of it which both employees and employers have seen in recent months.

The Senator raised good points relating to mental health and broadband access. In practice, those are elements we need to bear in mind from the point of view of employers and employees. Employers have a duty of care for employees with respect to their mental health and employees also have a responsibility. That is something we need to bear in mind. It is not so much a matter for detailed description and prescription in the Bill, the purpose of which is to put in place a legal framework, and the putting of that in place allows these discussions to take place and allows us to address the issues the Senator has raised regarding mental health and so on. My colleague, Ms Gray, would like to come in.

Ms Wendy Gray

I would also emphasise the Bill will allow for the right to request remote working, which will not necessarily be in a residential setting. As the Senator said, broadband access may be an issue in certain rural areas but there has been significant investment in enterprise centres and hubs around the country to allow for remote working to take place in that type of commercial setting where the broadband access might be better. Remote working would not necessarily be in an residential setting where the employee would be isolated and that would also help address the mental health issue. It is about offering people more choices and options. Significant investment has been made in enterprise centres and hubs around the country, which would help alleviate the isolation and assist the technical aspects of remote working.

Mr. Dermot Mulligan

My colleague, Mr. Doheny, would like to come in.

Mr. Mark Doheny

In response to the Senator's query on supports for employees, energy and set-up costs, slow broadband and mental health supports, we envisage all of those issues ask being key components of the code of practice. The Bill provides for a code of practice, which will establish best practice for employers and employees with regard to how schemes will work at organisational level. We see all of these as key issue to be discussed in the code of practice. We have considered these issues as part of the process.

I thank Mr. Doheny. Senator Crowe's time is up.

Am I okay for a minute?

No, the Senator's time is up. I am sorry.

May I ask one last question very briefly? It will only take ten seconds.

The Senator may go on but he should be very brief.

With regard to the clause relating to distance from the workplace and rural depopulation, does the true benefit of this not lie in that not being a requirement and not coming into it? Is that not the whole ethos of what we are trying to do?

Mr. Dermot Mulligan

Distance is an issue. As Ms Gray was saying earlier, at the extreme people could work from other countries, including countries outside of the EU. Distance can be a factor in respect of some remote working arrangements. If you had employees working outside of the EU, it could raise all sorts of issues with regard to regulations on workplace health and safety.

I meant people working from within the country.

I thank our witnesses for coming in today. I have just a few questions. The heads of the Bill require every employer to have a remote working policy. There are some forms of employment where remote working will not arise. I am thinking of businesses such as hairdressing. The person has to be on the premises to cut someone's hair. In situations where remote working would not work for employees, will it be possible to opt out of having a policy? It does not make any sense to be required to have a remote working policy when all employees have to be on-site and cannot work remotely. The Department might give consideration to that because the heads state, "An employer who, without reasonable cause, fails to bring to the attention of its employees the established and maintained Remote Working Policy", will be committing an offence but that does not provide for an opt-out from having one in the first place. Certain employers may not need to have such a policy for various reasons. The Department might look at that.

Does the Bill envisage hybrid working where people may work at home or in a remote hub for one or two days a week and go into the office for another two or three days? Is it all or nothing? Can that be built in or is it implied in the legislation?

My third question has to do with loneliness, isolation and so on, which has been mentioned. I have been speaking to some younger people who have been working remotely and they are really craving to get back into the office for the social interaction. One young man told me that he was at home in his own kitchen talking to himself all day and that it was driving him nuts. In situations where remote working does not work, can a request be made to go back to the office? It could suit many employers to have their workers working remotely and to dispense with the office completely. It would be a massive saving for an employer to not need to have an office at all or if the number of work stations or the space rented in an office block could be reduced. Is it possible for the employee to request to dispense with remote working and to go back to the office or even to go back to a hybrid model of some sort? Will employees be locked into working remotely even if it does not work out for them for whatever reason?

There is also an implied issue with respect to the equipment that might have to be made available. If somebody requests to work remotely and that request is granted, it seems to be implied that, on foot of that, the employer would have to make equipment available at the remote location. Depending on the work, we may be talking about desks, chairs, computers, printers and whatever else. Does that imposition on the employer naturally follow on from an agreement on working remotely? It seems to be implied in the legislation that it would. Maybe it does and maybe it does not. If it does not, the issue of the employer being responsible for the health and safety of the employee who makes the equipment available arises. There may be extra costs there.

Issues of taxation, data protection and codes of practice are also mentioned. Data protection is a particular concern for certain employers. I believe remote working is a very good idea in certain instances, as I believe we all do. It saves on travel costs, saves time, improves quality of life and, in many instances, can also improve productivity. However, the issue of data protection arises. Some employers have told me they are concerned about it, especially in remote working hubs where a number of people are working at desks side-by-side. Some employers have told me that if there is to be remote working, they want their own discrete, secure space where their employees will work so that they are doing cannot be overheard or made available to competitors and so on. That is something I would like the witnesses to comment on.

I see in some of the documents I have read that IDA Ireland and Enterprise Ireland are being asked to promote remote working among their clients. Will the officials comment on that? How is it going down? Are they doing it strongly? How will this Bill impact on that?

Mr. Dermot Mulligan

I will ask my colleague, Ms Gray, to reply to some of those points.

Ms Wendy Gray

I thank the Deputy. With regard to the remote work policy employers must have, when drafting the Bill, the thinking was that it can be tricky to legislate to exempt whole sectors or professions because we could inadvertently omit somebody who could be facilitated. For example, we might have chosen to exempt manufacturing. While machine operators cannot work remotely, there may be administrative or clerical people who could easily be facilitated. In the case of schools, people who do the accounts or secretarial work might easily be facilitated. That is the reason we are not legislating to rule out and exempt whole sectors or businesses. If an employer, such as the example of a hairdresser the Deputy mentioned or a butcher, has examined all roles, the policy may simply state that all the roles in the organisation have been examined and that remote work cannot be facilitated. It could be as simple as that. The plan is to provide templates for companies to work through in drafting their policies, assisting them so that they do not have the burden of trying to come up with things themselves. We will assist companies and promote templates for how to write a policy, including policies that state the business cannot facilitate remote working. We will mitigate that burden on employers.

With regard to the Deputy's queries on hybrid working, we absolutely envisage that many employers and employees will want a mix rather than a full five days at home. Hybrid working will absolutely be there. We envisage employers' remote working policies covering how hybrid working is to be dealt with. Some employers may not want 100% remote working while others may. That will be part of their own policies. It will also be part of the guidelines in the code of practice that will be developed to support the understanding of the rights and obligations involved.

On the issue of revocation, this is part of the normal terms and conditions of employment and will also be set out in the remote working policy. The employer may not have desks or something like that and may say that he needs two or three weeks' notice if somebody is choosing to come back into the workplace permanently.

Again, we will be providing guidelines that should be set out easily for workers to understand where their rights are in giving up the remote work scenario. That will be all set out to assist employees in the policy as well.

On equipment, the employer is responsible for providing the correct equipment for an employee to carry out their role. Similarly, with health and safety, that obligation on employers should not change. I am not sure that many employers would be happy if someone would choose to use their own private laptop or something, so I think many employers would want to provide the appropriate protections and security protections on a laptop or whatever. We would envisage that there would be no change on the applications to the employer to support the worker to carry out his work properly.

I thank Ms. Gray. Let us wrap up there, as Senator Ahearn wants to come in.

I thank the officials for their contributions. One official spoke about how this can have a real impact on rural regions. I am from an area in south Tipperary where we are an hour from Cork, Waterford, Limerick and Kilkenny. There are thousands of people who travel - or, certainly before Covid, travelled - to work. People are saying that the draft legislation as it is at the moment is very much weighed in favour of the employer. However, we are not finished yet. In fairness, the Tánaiste is open to amendments. We have to remember this is legislation that is coming through to support the employee.

Are businesses and employees almost ahead of this? We are bringing in legislation and it is important to do that. However, the conversations between employees and employers have happened already. Due to the past two years, it is almost a prerequisite demand from many employees, that this is what they want from an employer and if they do not get it they just look somewhere else. Is that something that has already been seen?

Mr. Dermot Mulligan

I think the Senator is right in that there has been a great deal of remote working during the pandemic in the past two years. Even as we come out of the pandemic, we are seeing that rather than returning to five days a week in the office, hybrid working is much more popular. This means, perhaps, a number of days in the office and a number not. Still, probably some people are working 100% remotely.

The aim of this legislation is provide a legal framework so that employees have a right to request this. As in all things, the occurrence of remote working can be uneven. There are some sectors, as the Senator said, where there is an awful lot of it going on and it is very common. In fact, to some extent, in some sectors, probably employers will have to offer either significant hybrid working or remote working in order to attract employees and the skills that they need. That will be a reality in certain occupations and certain sectors of the marketplace.

There are other sectors where, perhaps, remote working is something that has not been happening as much as it might and employers need to consider it more. This legislation aims to give the employee the right to request of those employers that they seriously consider this. That is the change and difference. It also puts in place a legal framework to allow those conversations to take place.

We would be very conscious of the impact in rural and regional areas, as the Senator said, and hub development is part of that. Some €9 million was announced last summer to try to continue to enhance hubs in regional and rural areas.

There was a question earlier about Enterprise Ireland, EI, and the Industry Development Authority, IDA, and whether they are promoting this. They most certainly are. In particular, in relation to IDA, remote working is a key part of being able to supply businesses with the skills that they need in a tightening labour market in certain sectors. Therefore, it is very much part of our enterprise policy and our enterprise agencies' activities, both EI and IDA. We see this as part of the future and so we need to put a legal framework in place to make sure that there is a floor of protection, it occurs in a structured way and the employers that have not thought about it perhaps think about it more deeply whenever they get the request from the employee.

I have two quick questions on that. Mr. Mulligan spoke about remote hubs and the amount of money that is being put into them. Does he think it needs to be ramped up even more? Where I live in Tipperary, we have two excellent remote hub areas. However, the demand is increasing week on week and month on month. To manage that for companies looking to facilitate remote working, whether it is not at home in rural areas where I live where we might not have good broadband, but they want to do it in towns such as Cahir, Tipperary town and Carrick-on-Suir, do we need to ramp it up more?

Mr. Mulligan said there is a six-month period before someone can request remote working because there needs to be a relationship between the employer and the employee built up. However, over the past two years, we have had an awful lot of people who have started a career with a company in remote working from the very start. The employees and employer have not seen each other very much.

Does Mr. Mulligan have information or statistics on how that has worked from the employer's perspective? He said there needs to be a six-month period for that relationship to develop. Does that mean that over the past two years that has been a challenge for employers or not? It seems to me that part of the interview process at this stage will nearly be an offer of remote working as part of someone taking a role. It would certainly be a conversation. I can understand why there is a six-month period talked about but, practically, I do not see the logic in it because the opposite has been happening over the past two years. I am interested in Mr. Mulligan's view on that.

Mr. Dermot Mulligan

I will ask my colleagues to come in as well. Generally, the point is that we are creating a floor, a legal framework and a set of protections. The Senator is right that in many employments, employers are happy to go directly to a remote working situation. However, that is for the employer to decide. Obviously, we do not intend to interrupt, infringe or impinge on any of those arrangements in any way. We are creating a floor and we want to promote remote working generally. Perhaps I will ask Mr Gray to come in and then Mr. Doheny.

I apologise, as the Senator's time is up. Ms Gray and Mr. Doheny can comment very briefly on Senator Ahearn's questions.

Ms Wendy Gray

I would just like to say that the employer is free to offer anything they would like from day one. It is the floor that we are offering, in terms of the minimum right of the employee. In addition, it is quite common to have a number of months to serve in an employment before an employee gets legal rights, in particular, rights such as parental leave, carer's leave and unfair dismissals. Those all require a certain amount of time served before an employee gets those rights. We would be happy to consider a recommendation if the committee feels that six months is too long.

Does Mr. Doheny want to come in very briefly?

Mr. Mark Doheny

Just very briefly in response to Senator Ahearn's comment, it certainly was a comment from employers in the public consultation that had been facilitating remote workers from the start of employment. They mentioned that it was an onboarding process and that the initial six-month period was very difficult to get full handle on in a fully-remote environment. It certainly was something that stuck out and it was repeated by IBEC and individual employers, and even some employees in the consultation. It was something we heard over and over.

I thank Deputy Stanton and Senator Ahearn for their contributions. I will move on to the Labour slot with Senator Marie Sherlock. I remind members participating remotely that if they wish to speak they should raise their hand so I can see that they want to come in.

I thank the officials for attending this hearing today. This was described as landmark legislation. The question has to be asked, how can it be described as landmark legislation when there is no balance between the employee and the employer?

I refer to employees having to wait for 26 weeks before they can even ask to work remotely. They then have an inordinate wait of 12 weeks before they can get an answer. The grounds for refusal are so wide as to make the right to request meaningless. Equally, there is no proper right to appeal the grounds for refusal. How can the Department reconcile the ambition that was set out in the strategy on remote working, wherein the Tánaiste referred to more opportunities being available for those with disabilities, caring responsibilities and those living in rural Ireland, with the rigid, conservative and very much right-to-request-focused proposed legislation we have here?

Turning to specific questions, head 6 deals with employees having to wait 26 weeks when they start before they can even ask to work remotely. I know of no other workplace right that kicks in at 26 weeks. The way it is drafted here means that it amounts to a perk for good behaviour as opposed to something we must be embedding into the future of work. I would therefore like to hear a little bit more about how the 26-week period was decided.

Turning to head 12(3)(j) regarding concerns about commuting, why should the length and-or distance of the commute matter? Inserting that provision ignores the decisions others here have highlighted. I refer to decisions people have made during the pandemic to relocate because of the costs of rent and buying property in some of the main urban areas. We are also on dangerous ground because we are asking employers to decide on the appropriateness of a commute. Could we then end up in a situation where it might be considered okay for a single person to be commuting for two hours but not okay for a working parent or somebody with other responsibilities to be doing so? We are getting into a space here where we are allowing employers to make decisions about the type of commute and, effectively, differentiating between workers, which is a very dangerous context. Provision is made in these heads concerning the location of where a person works. This issue is therefore already covered, and inserting this proposed provision regarding the length of commute is alarming. I look forward to the responses.

Mr. Dermot Mulligan

I thank the Senator for the question. On how the proposed legislation can be termed "landmark" and how it advances the Making Remote Work strategy, the first action in that document published by the Department was to "Legislate to provide employees the right to request remote work". It is a right that has not so far existed, so this proposed legislation is landmark in that sense. It is the first and central action contained in the remote working strategy published by the Department.

Regarding the balance between employers and employees, and we have heard today and previously several different views concerning where the balance lies in this regard and what is the appropriate balance, we would be the first to say that is not an easy thing to arrive at. We are working through the various legal and policy issues to try to find what the appropriate balance in this regard should be and how it should be expressed in this proposed legislation. This is very much a work in progress.

Turning to the 26-week wait and the commute, I ask my colleagues to comment on those aspects. Mr. Doheny has already spoken a little about these points.

Ms Wendy Gray

The provision regarding the commute essentially concerns people asking to work from a different jurisdiction in Europe or a third country. It is there to allow employers to judge whether such a commute might be suitable. For example, if an employee is going to be a three- or four-hour flight away from work, would that be acceptable to the employer? The inclusion of this point is there to give balance in this regard.

What is the message going out to workers who have already relocated? Some workers in that situation are concerned they will be told their employment contracts or relationships will have to be terminated because they cannot be physically present in the office for the five days employers might be requesting each week. What is the Department's position on that type of situation?

Ms Wendy Gray

This Bill is providing for the framework to have an application heard, for the employer to consider it properly and for a reasonable response to be given regarding why the request should not be granted. In the cases of most employers, we would be relying on this type of discussion being had before the legislation is enacted anyway. If employers have experience over the past two years of the workers applying having carried out their work, the Tánaiste has said many times that his expectation would be that employers would continue with that arrangement. Having seen the evidence of the work being carried out properly over the past two years and there having been no difference in productivity, why not continue with the arrangement?

Okay. To be clear, though, the proposed Bill will not provide for any of that. There is no recognition of the successful experience in many cases and of people working from home, and that is a glaring omission in the proposed Bill. I also asked how the 26-week waiting period was decided.

Ms Wendy Gray

We often use time to be served in the context of eligibility for rights, including in the cases of parental leave, carer's leave and unfair dismissal, for example. Various pieces of legislation have such provisions necessitating the serving of a certain time. The other issue we examined was facilitation of the training of people before they work remotely, because we have had feedback that it is often difficult to train people if they start remote working on day one. That said, employers have the choice to offer employees such terms and conditions from day one if they wish to. Therefore, employers are free to offer remote working to employees from day one. What we are doing is just providing for a legal right and that must be treated differently and have a balance. That is why we have selected six months as the potential qualifying period, which is much shorter than is the case regarding when many other employment rights kick in. We are, however, again happy to take on board the views of the members of the committee and to consider this if they feel it is too extreme.

I thank Ms Gray. Turning to head 7 and the limitation regarding submitting another request within 12 months, I note that the definition of "remote work" states it is an umbrella term and that the concept of flexible work is part and parcel of the ability to work remotely. In this head, however, I am reading language used such as "constant requests" being put forward by employees. That says much about whose side the Department is on regarding this legislation. Equally, it seems counter-intuitive to set a 12-month gap between the submission of a request to an employer and subsequent submission of another request. What about a situation where a temporary arrangement may be needed to work from home or another location for several weeks? Such a provision is not provided for at all in this legislation. There is no flexibility embedded in these draft heads of the Bill as they stand.

Ms Wendy Gray

Regarding the drafting, it can often be difficult to draft legislation to cover individual scenarios that may occur in certain weeks during the year. It is too difficult to legislate for such instances. We would expect, as normal and as things are working now, that most employers will be open to discussing with employees issues that may arise in situations requiring something to happen temporarily. There is not necessarily a need for the State to intervene in such cases and to legislate for that kind of temporary or emergency arrangement to be put in place. It is too difficult to envisage and legislate properly for every scenario.

I thank Ms Gray.

The next member who has indicated to speak is Deputy Paul Murphy.

I have had my hand up an awfully long time. I do not mind if I have been missed.

The Deputy has not been missed on the list. I am sorry, but I am following the rota. Deputy Paul Murphy is next.

I beg the Chair's pardon. That is grand.

Deputy Bruton is on the list.

First, I apologise for only arriving a few minutes ago. I was speaking on our Private Members' Bill. My apologies if I ask questions that have already been answered. As currently drafted, the heads of the Bill are extremely weak and give a right to request, which is fine, and then a right to deny by the employer on very broad business grounds. There is a list of 13 reasons, but it is explicitly stated that it is not an exhaustive list so an employer can reject on any business ground. When we discussed this with the Minister last week, he said that perhaps 13 reasons are too many and he indicated a willingness to look at the grounds for refusal. That was not included in the opening statement. Is the witness considering the issue of the grounds being too broad and so forth?

Mr. Dermot Mulligan

We discussed this earlier. The answer is "Yes". We are considering the number of grounds and the wording of them. The Deputy might have been here when I said we are trying to find the right balance between an employer who has to run a business and an employee who has an interest. We want to create a right to request remote working, and we want to promote remote working in general. We see all the benefits that has for the employee, the employer and, indeed, wider society and the economy. We have to take all that into account. In considering this piece of the grounds and so forth, we will be reflecting on all that.

Within that, is the Department open to removing the catch-all business grounds? In a sense the Department could remove all 13 grounds and it is still left with business grounds, which is extremely broad. Any business can refuse on business grounds. That appears to me to be where the problem is, as opposed to the 13 grounds.

Mr. Dermot Mulligan

The thought process regarding those grounds is still in progress.

Okay. What is in the heads of the Bill at present is the right to appeal as effectively a procedural right. One can appeal on procedural grounds that one's employer did not refer back to one in time, as opposed to on substantial grounds that the business grounds the employer is citing are not substantiated. Is the Department indicating a willingness to amend or change that?

Mr. Dermot Mulligan

As the Deputy heard from the Minister, we are looking at that. He has asked us to examine that to see what can be done with that piece. We are in the territory of the interests of the employer in running a business and the rights and responsibilities of the employee. That is a complicated area. Legally, there are a number of issues we have to think through in that space as well. It is not simple, but we have been asked by the Minister to examine that and to consider what we can do, so we are looking at that.

As drafted, the balance is very much in favour of the employer. The right to request is very limited when the employer can just refuse and one cannot appeal on substantive grounds. Hopefully, that will be amended.

Mr. Dermot Mulligan

We have heard, both this morning and as part of our consultation, a number of voices that took a different view. What we have to try to find is a legislative measure that will create a legal framework for employees to request remote working and to have that right to request, but also to create a framework where an employer can and should respond in a reasonable and considered way to that request. We are very clear that we want to promote remote working in Ireland and we see all the benefits of it, so we are trying to find our way to strike the balance in an appropriate way between the various interests.

Mr. Alan Eustace and Ms Niamh Egleston in Trinity College Dublin have proposed an alternative model of remote working based on annual leave, where a worker would effectively be entitled to a number of days of remote working in the course of a year. Is that something the Department has considered as an addition to the current model, which is based on all-year-round remote working and the right to remote working? The idea is that a worker who normally would travel to the place of work might be able to say that he or she is also entitled to 20 days of remote working and can take them as necessary.

Mr. Dermot Mulligan

I will ask my colleagues whether they are aware of that work.

Ms Wendy Gray

No, it is not a model we looked at in the remote work strategy. The Bill as it is was the policy intention from the start of the remote work strategy.

Okay. I thank the witnesses.

Next is Deputy Bruton, who has seven minutes, followed by Deputy Shanahan, who also has seven minutes.

My apologies, Chairman, for being late joining the meeting. I had a Topical Issue debate in the Dáil this morning. However, I heard most of the evidence. First, I welcome Mr. Mulligan and the team and thank them for their work on this. In a normal situation these are terms and conditions that would be subject to negotiation, but what we have had here is a step change and as a result we have to ensure that a step change can happen in an environment where there are established contracts and there is no time for all the negotiation. I can understand how the Department is trying to steer a route. There are cost and convenience issues on both sides and we have to try to reach a reasonable outcome. There is a concern in the committee that with this refusal of it as not suitable on business grounds, very trivial cost issues could be offered and it appears there is no opportunity for an adjudication.

What I would like to explore with the witnesses is the role of the codes of practice. I know the codes of practice can be recognised by order. It is stated in the heads of the Bill that there can be codes for any section of the legislation. Will that include the section that offers the grounds for refusal? Will the codes be able to test and set up what are reasonable grounds through these codes? Could the codes be different for different sectors? One can obviously see how difficult it would be to provide a code that would cover both hairdressing and IT services, that are normally delivered remotely. The other issue is that if those codes can cover areas such as what is a reasonable ground for any one of those tests, be it cost, convenience, confidentiality, commuting and the rest of the 13 grounds, in a complaint that might be made to the WRC, how would those codes be interpreted by the WRC? Could a breach of what would be established by order as a code constitute a ground for saying the employer had acted unreasonably and therefore the employee is entitled to redress either by getting his or her request or by getting financial compensation or whatever it would be? I want to explore how powerful a tool these codes can be.

There is a balance to be struck and it is hard to do that in primary legislation. I hear members say that 12 weeks is too long to decide, but it is a maximum of 12 weeks. If there are assessments to be done of confidentiality, health and safety or whatever it would be, one could see circumstances where it would take some time to establish that. The question again is whether employers use these periods reasonably or they simply exploit them for spinning out the process as long as they can and frustrate the request.

My central question is really to explore the codes and how effective they could be.

Mr. Dermot Mulligan

I will ask my colleague, Ms Gray, to comment on that.

Ms Wendy Gray

The purpose of the code of practice is that there would be a written guideline agreed in a consultative process.

For example, the Tánaiste launched a right to disconnect last year. The WRC conducted various negotiations with unions and employer representative bodies to set out guidance and best practice to help employers to roll out the legislation in full compliance and also to help employees to understand what their rights are. The Deputy is right in saying that the code is not an offence in itself. Section 29 of the Workplace Relations Commission Act provides that in any proceedings before a court, the Labour Court or the WRC, a code of practice shall be admissible in evidence, including any provision of the code which appears to the court to be relevant to any of the questions arising in the proceedings. They are useful and helpful. We can look at including all the different aspects that the unions and employer bodies deem to be helpful in the code when it is being drafted over the next months.

I would like to explore that further. Ms Gray refers to it being admissible in a hearing. If the hearing was about an unreasonable refusal for a request for remote working which was brought to the WRC, would that mean that, if the employer had used a cost defence but it was of such a trivial nature and was not in compliance with the spirit of the code, the employee then would win the case? Precedent would then become established fairly quickly once the codes were published if they were sufficiently defined for different sectoral situations. Employers would have to quickly move to adopt a reasonable approach as established in the WRC. This is an important issue for us because if we are to change the primary legislation, hoping to get an outcome that strikes a balance, that is a difficult job to do. It would be better if the WRC had scope to test this reasonableness and establish codes that are flexible enough for different circumstances.

Ms Wendy Gray

The Deputy is right. We need to look at it with regard to the reasonable grounds. We are trying to balance it. We cannot cause an avalanche of cases going to the WRC. We also need to manage expectations. The code of practice will be looked at. We expect that individual employers would put certain parameters in place regarding requests for remote work in their own policies. That will be taken into account as well, depending on how they deal with issues such as costs in the remote work policy and explain to employees how they will treat requests. We have to look further at that.

Can that be done in tandem with the legislation progressing so that the WRC can evolve codes that we have sight of before we pass the legislation?

Ms Wendy Gray

The Deputy is right that there is a timing issue. We have to plan the timing for the commencement of the legislation. We have to work towards that to ensure that employers know what they are doing when the legislation comes into place. We are planning to have consultations in tandem while we are working through some of the legislation.

Good morning to our guests. I welcome this legislation. As a regional Deputy, I think it potentially offers great opportunity for people to try to work remotely. It may not be every day of the week but it would be a number of days. We are spending money on innovation hubs and working hubs around the country. This is a good opportunity to try to cut down on the amount of commuting and to give people a better quality of life. I think that, in general, employers will embrace it where it is reasonable. I will present a number of scenarios and I ask Mr. Mulligan to give his opinion on them. Does he think that remote working might disadvantage career progression, where someone is out of the office and someone else who is in the office is promoted? Could this lead to a case of constructive dismissal?

If someone takes on remote working and decides that she is going to raise the kids at home for a few years, then the kids go to school, then she decides that she would like to go into the office, how would she be accommodated under the policy?

The other matter relates to commercial rates. Many companies are tied into leases of up to 15 years for office space. We are now saying to them that they need to be able to offer a good proportion of their staff the opportunity to work from home. Does Mr. Mulligan think that there is any softening in the legislation, potentially with a rebate for employers who will have to offer that and are now renting space that they do not need because they are implementing this policy? The Government is offering a tax credit for setting up domestic offices. Does Mr. Mulligan think it is enough? I do not think it is enough, especially if substantial IT systems are being installed.

The last matter relates to employer liability issues. I am sure Mr. Mulligan saw the issue some time ago where a German worker tried to take an employer to court after falling down his own stairs. How does Mr. Mulligan think insurance concerns will be considered by employers when they refuse remote working opportunities?

Mr. Dermot Mulligan

I thank the Deputy for those questions. There are questions to be considered about career progression. I referred to that in my opening statement. Regarding whether people want to move back into an office from a remote situation, that is, in a sense, a right to request to work in the office, which is counterfactual in a sense. They are all issues which are to be considered.

The Deputy referred to employer liability too. There are some real issues relating to employer responsibilities and obligations. The Health and Safety Authority has issued guidance relating to working from home. That plays a big part in how we balance the rights and responsibilities of employers and employees in a working from home situation. The Deputy referred to a case in a different jurisdiction, which has a different set of employment laws. It is an interesting issue. We need to work through a number of issues as we apply this policy and as remote working becomes more widespread and permanent. The Deputy raised commercial rates and the question of a rebate and tax credits. They are outside the scope of this Bill but they are issues which will need to be considered as remote working becomes a more permanent feature.

I will point out two things. The Tánaiste was here last week, talking about developing occupier's liability insurance. He is hoping to introduce something to address that shortly. I imagine that, at the present time, that extends to somebody who is contracted to work at home. It might be a stretch but I am sure that many legal eagles around the country would not mind trying to create the association. The other matter that I wish to raise relates to taking on somebody on a remote working contract. If a lady wants to start her family, takes a contract for working from home and has that understanding with the employer, will this legislation supersede that understanding, so that she can then request to come into an office, which she was not offered as an option at the start because other people were working in the office?

Mr. Mark Doheny

An individual hired on a remote-only basis over the past two years could, after the eligibility requirement of six months is met, submit a request for a hybrid working model that would fit within the definition of a remote working request. He or she could request some element of remote and office-based work that would have to be considered by the employer.

What about a new contract? I am referring to one offered now rather than one agreed in the past two years.

Mr. Mark Doheny

Anybody meeting the eligibility requirement would be able to make a request under the Act for a form of hybrid or remote working. If they are fully office-based or fully remote, they could submit a request.

I thank Mr. Doheny. The issue of insurance has not been well thought-out in this legislation. We might be solving one problem but creating another. That is what I would like to see put to bed.

I welcome the opportunity to ask questions. I very much welcome this legislation and the remote work strategy that was launched last year. We can consider this in respect of supply and demand. We certainly have the demand for remote working and can see how the Government is investing to create an environment that allows people to work in their communities. It is investing in hubs and broadband and by way of the Town Centre First initiative that was launched. We also have to make sure there is a supply of remote jobs and that employers are facilitating remote working in order for us to deliver on the vision.

I have three questions. They concern change, the grounds and language of the grounds, and appeals. I read the consultation paper. Have the delegates engaged with remote-only companies that have been operational in Ireland for longer than Covid, such as Glofox, Flipdish, Shopify and Flexco, which has over 1,000 employees? I refer to companies that are leading in this area. My concern is that the consultation and submissions might be skewed in favour of employers that have concerns and see barriers instead of opportunities. Is there an opportunity to bring in those companies that are leading in this area to talk about how they deal with health and safety, data protection, monitoring, well-being and onboarding? They are dealing with this matter already. It could be good for the committee to hear from them. If a consultation is being conducted, we should be leading the employers instead of having the employers lead us.

I also want to ask about the resources that are being made available. We support SMEs with productivity and digital transformation. This is a matter of digital transformation; it is about creating offices that are digital first. We are focusing on people and the issues people might have regarding lost opportunities in the workplace, but we need to realise that it is the roles that are remote and that it is up to the company to embrace the culture of remote working rather than become too fixated on the idea of the legislation allowing people to work from home instead of allowing companies to become digital first and embrace change.

I wish to talk about Dropbox. It is an organisation that bought a big office in Dublin a few years ago. It spent a lot of money on it but it has changed how it does things by creating regional hubs. Staff can work from the office if they want to or they can work from a hub. The company has moved from the idea of presenteeism in the office to different ways of operating. We need to hear from such companies. We need to hear from Grow Remote, which is training managers in this area. It is a matter of assisting companies and having an alliance of employers that are trying to lead in terms of best practice in hybrid working.

On the grounds and the language of the grounds, I note that the Long Title refers to “reasonable grounds". That is important. Therefore, the ambition is such that employers must provide reasonable grounds to decline a request. That could be reflected in head 12. In the flexible working arrangements in other countries, the language is very important. We should compare our language, which refers to the potential negative impact on the quality of the business, product or service, with the language pertaining to other flexible working arrangements, which might refer to a detrimental impact. While we have concerns about certain business issues, it is a matter of whether we can make our aspirations concrete. What I said about the learnings around health and safety, data protection, and monitoring would also feed into the grounds. Therefore, the language concerning reasonableness is very important. Should the word "demonstrable" not also be included?

If the Senator wants answers, she will have to wrap up.

On distance, this is about remote working; it is about being location agnostic. There is a need to tighten up the parameters regarding people outside the country. The formal disciplinary process seems a little unfair. Somebody might be struggling because they could need remote work. Unless it has to do with health and safety or data protection, I wonder why the measure is included. I support the Tánaiste’s clear statement that it is not just about a solely procedural right in terms of the appeal because it also needs to be about the reasonableness of the request.

Mr. Dermot Mulligan

We have already discussed the grounds and what the Tánaiste has asked us to consider with respect to the number and substance of the grounds and how they may be adjusted in a way that makes sense.

On the question on whether we consulted or heard from remote-first companies, I ask my colleagues to comment on the responses to our consultation from the business sector.

Mr. Mark Doheny

In response to the Senator’s query, we did not receive responses from Flipdish or Flexco in the public consultation, and we did not consult them beyond that. However, we will be happy to consult them if they are willing to make contact.

We did receive correspondence from Grow Remote, which the Senator mentioned, and it was considered as part of the consultation. I missed some of the names of the other companies, but we did not receive a submission from Dropbox.

Mr. Dermot Mulligan

The point is that this is legislation to create a floor to give an employee a right to request remote working; it is not to try to constrain the many companies and employees involved in remote work 100% of the time in various locations. We are trying to include a floor, not a ceiling. There is absolutely no limit to the possibilities regarding what firms or employees can do through remote working. It is for them to agree as part of their normal relationships.

My point is that employers in general could learn from the companies I have mentioned. That should be part of the change management and of assisting companies with change. Companies’ concerns are understandable but if there are lessons and best practice that can assist them, there should be a role in respect of the assistance and support.

We have concluded round 1 and are now coming to round 2. The first person indicating to speak is Deputy Stanton, who has seven minutes. Anybody who has not indicated a wish to contribute should do so.

Let me follow up on what Deputy Shanahan was talking about with respect to insurance. If the home becomes a workplace, there may be implications for insurance cover.

In some instances, perhaps a home would become a workplace even for rates. Could a house or part of it be considered rateable?

If the home becomes a workplace, does the employer have the right to inspect the workplace? If the employer is to be responsible for the safety of the worker, how can the employer ascertain the risks that might be involved if he or she does not have the right to inspect? I note that in New Zealand the employee has to send in photographs of the workspace. Perhaps the witnesses will comment on that.

Is there anything in the Bill that constrains or stops the employer from revoking the arrangements if they do not work? If remote working is agreed on, proceeds but does not work for whatever reason, is there anything in the Bill stopping the employer from revoking the arrangements and saying remote working is to stop and the employee must come into work, the office or whatever?

Head 13 refers to "the commencement of an internal appeal process provided for within their employer’s remote working policy." It then refers to head 14 but I cannot find information on this process in that head. Perhaps the witnesses will speak about this. It seems that this is another step an employee needs to take before he or she can go to the Workplace Relations Commission, where there is an internal appeals process in the company. Is there any time limit by which the employee has to appeal to the WRC? Maybe there is such a time limit under the Act of 2015 but I have not found that. Perhaps the witnesses will tell me. I note that in some jurisdictions the employee has to appeal within a certain time. Is it open-ended? If so, that creates its own problems.

With regard to flexitime and flexible working, is there anything in the heads that would encourage or discourage flexible working? If a person decides to work remotely and is working on Saturdays or Sundays, overtime and so forth comes into the equation. I ask the witnesses to comment on flexible work because it appears that working remotely could facilitate flexitime and flexible working, particularly if parents have to collect children from school and so forth, provided the work is done, and they do these things in their own time.

Mr. Dermot Mulligan

Deputy Stanton raised a number of interesting questions on the health and safety issues of working in the home. I referred earlier to the Health and Safety Authority publication, Guidance on Working From Home, which sets out the responsibilities of employers and employees. It also refers to a risk assessment of the employee's workstation in the home. The nature of that risk assessment will vary from home to home and occupation to occupation but there are issues there that will need to be worked through.

We are considering the issue of revocation of remote working and whether, as part of the legal framework, we need something to cover that space. We are actively thinking about that.

I will ask my colleagues to comment on the internal appeals process and the connection with flexible working.

Mr. Mark Doheny

The internal appeals process is a requirement under the remote working policy. It is intended that at organisational level, there would be an internal review before going to the formal review at the WRC in an effort to increase discourse and encourage consultation and conciliation at organisational level, rather than taking statutory recourse.

On flexible working, there is a flexible working directive currently with the Department of Children, Equality, Disability, Integration and Youth. It is progressing a Bill that will implement flexible working, in particular for certain categories of carers and working parents. The Bill is designed not to restrict anything within that other Bill. We have an interdepartmental working group in which we liaise with the Department of Children, Equality, Disability, Integration and Youth with regard to the various provisions. As Mr. Mulligan mentioned, we are specifically looking at remote working, which is one of nine options under the flexible working directive.

Will Mr. Doheny comment on the time limit for the right to appeal? Is a time limit built in under other legislation that would impact on this or is it open?

Mr. Mark Doheny

In the Workplace Relations Act 2015, a claim must be taken within six months and can be extended by an additional six months in set criteria. It is not proposed to change that for this Bill.

Senator Currie made some very important points about what is possible with remote and flexible working. Unless we see substantial change, this landmark legislation, as the Department describes it, will be a lost opportunity, especially given that Ireland is the member state with the highest share of jobless lone parents and jobless persons with a permanent disability in the European Union. It is important that we use this Bill to encourage, incentivise and nudge employers into taking up remote and flexible working. If, when we see the Bill, it in any way approximates to the heads we have here, this will be very much a lost opportunity.

In that context, I want to ask about the timeline that was mentioned earlier. I understand there is an ambition to have the Bill passed through all Stages before the summer recess. At my count, that give us 18 or 19 weeks, which should be plenty of time. As we have seen, however, we still do not have a sick pay Act, despite the Government talking about that for a year and a half at this stage. When can we expect to see the Bill? I believe it will need time and cannot be rushed through the Dáil and Seanad. If the witnesses cannot provide an answer today, the committee needs to hear as soon as possible what precise timeline the Department has with regard to progressing this legislation over the coming weeks.

Mr. Dermot Mulligan

The next step will be to receive the committee's report and views on the Bill. We will then give those consideration. We have outlined and discussed this morning many issues on the heads of Bill that also require further consideration. When we have the committee's report we will work as quickly and effectively as we can to progress the Bill. I am not sure I can say much more than that.

There will be a role for the committee. We will go into private session after this meeting to decide how much time we want to devote to this legislation and if we will need extra time. We have received submissions and the Department also received a large number of submissions, which the committee has also looked at. Does anyone else wish to speak on this section?

I seek clarity on the formal disciplinary process and the thinking behind that. We were offered some clarity around the location and I was just wondering what the rationale is for that too.

Ms Wendy Gray

Feedback from our interdepartmental group suggested it might be important in terms of performance, productivity, quality and so on that the employer would be concerned about. We can take feedback and consider if it is deemed that it is not suitable to have that issue in there. It was done to take on board the concerns of other Departments. This is why we had the disciplinary issue in the grounds.

That concludes our consideration of the matter today. I thank the officials from the Department of Enterprise, Trade and Employment, Mr. Mulligan, Ms Gray and Mr. Doheny, for assisting the committee in its consideration of these important matters.

The committee will consider this matter further as soon as possible. It is an issue of great concern for many people and the legislation is potentially groundbreaking. That concludes our consideration of the matter and concludes the public portion of today's meeting. I now propose that the committee go into private session to consider other business on our agenda.

Mr. Dermot Mulligan

I thank the Chair and the members for their contributions, which we have carefully noted and will reflect on.

I again thank Mr. Mulligan and his officials.

The joint committee went into private session at 11.21 a.m. and adjourned at 11.53 a.m. until 9.30 a.m. on Wednesday, 16 February 2022.