Employment Law Developments

Significantly, it does not confer an automatic entitlement to work remotely. Rather this draft legislation outlines the technical procedure to be taken when making and assessing a request to work remotely. Employers will be required to provide reasonable grounds for refusing to facilitate an employees’ request. A non-exhaustive list of thirteen such grounds of refusal is included in the draft. However, it is anticipated that the extent to which such reasons will be immune from scrutiny may be called into question given the reality that many employees have been successfully working remotely during the pandemic.

As currently drafted there is no facility under which an employee can interrogate the merits of a refusal of a request to work remotely. There is no scope for an employer’s assessment and final decision to be challenged or overturned by the Workplace Relations Commission (“WRC”) but the legislative committee recommended that "tighter grounds"… would be included in the primary legislation to ensure that unreasonable refusals are "open to challenge".  At present, the WRC can only direct compliance with the employer’s procedural obligations under the legislation, for example, the requirement to respond to such a request within 12 weeks of its submission.

Importantly, all workplaces must have a written statement which sets out the company’s Remote Working Policy, specifying the manner in which remote working requests are managed and the conditions which will apply to remote working generally within the organisation.

In terms of the timeframe for publication, the Bill is listed as a priority bill for drafting and publication this session, however it needs to go through the full legislative process before it becomes law, therefore may be subject to further change and amendment.

"The world of work has changed... This new law will give every employee the right to request remote working from their employer. Employers will be required to provide reasonable grounds for refusing to facilitate an employee's request."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment

The Department of Enterprise, Trade and Employment has indicated plans to increase the number of statutory sick days to five days in 2023, seven days in 2024 and 10 days in 2025.

The 2022 Act provides that employees will be entitled to statutory sick leave payment from their employer for each statutory sick leave day. This will be set at a daily rate of 70 % of an employee's regular earnings up to €110 a day. The employee must provide their employer with a medical certificate signed by a registered medical practitioner stating that they are unable to work. 

The 2022 Act further provides that the Labour Court may exempt an employer from the obligation to pay an employee or employees statutory sick leave payment in certain limited circumstances where the employer’s business is experiencing severe financial difficulties. The Labour Court is required to maintain a register of all these decisions which will be publicly available.

Under the 2022 Act, an employer is obliged to keep records for four years of the statutory sick leave taken by each employee. An employer who without reasonable cause fails to keep records shall be guilty of an offence and liable on summary conviction to a fine of €2,500.

"This is a really important new employment right, that all workers will now have, no matter what their illness or job. Many employers pay sick pay, but the pandemic really highlighted the vulnerability of some workers, especially in the private sector and those on low pay. We’ve also been behind our European counterparts on this, with Ireland being one of the few advanced countries without such a scheme."

Leo Varadkar, Tánaiste and Minister for Enterprise, Trade and Employment

The Guidance outlines that the above list is non-exhaustive, and it remains to be seen how exactly the Adjudication Officers will consider this in practice.  The Guidance further provides that, neither the fact that both parties want a case to be heard in private, nor the possible impact of a public hearing on someone’s reputation, are automatic reasons for the matter to be heard in private. The Guidance notes that ultimately, it is a matter for the Adjudication Officer to decide based on the facts of the case in accordance with the law and fair procedure.

In addition, in keeping with the principles set out in Zalewski, the 2021 Act makes provision for adjudicator officers to take evidence on oath or affirmation.

Finally, the 2021 Act provides that the giving of a false statement shall be an offence.  The penalties are;

In summary, the effect of the 2021 Act is that there is an important change to the context in which  employers consider whether to proceed with or defend a claim in the WRC, taking into account, in particular, the public nature of hearings and the publication of party names in decisions.

"I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer." 

Mr Justice O'Donnell, paragraph 142, [2021] IESC 24

The key measures proposed are as follows: