A sense of unease pervades the workplace as the days of remote working start to look increasingly numbered. Amazon put the cat among the pigeons last month by ordering its global workforce back into the office in the interest of more and better collaboration. The move will affect the 4,000 people who work in Ireland for AWS, its cloud computing arm.
For the moment, other employers are looking to see how Amazon gets on, and its Irish employees are unlikely to go down without a fight. The move is likely to be the first big test of the newly minted right to remote working law, or to be more accurate: the right to request remote working law.
The law — which came into effect earlier this year — says that your employer can’t give you a flat no when you ask for remote working. They must show that they have considered the request properly and followed correct procedures before giving you a reasoned no.
The arbiter as to whether they have fulfilled their obligations will be the Workplace Relations Commission (WRC). It is a quasi-judicial body so we will not know how it will choose to interpret the legislation until it has handed down several significant decisions.
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The generally favourable attitude of US corporations towards remote working at the time — helped by their positive experience — diffused the issue to a certain extent
But there are few grounds for optimism, as the deck is stacked in favour of Amazon.
If you were looking for an example of the contradiction at the heart of the Irish socio-economic model the right to remote working is a good place to start. Ireland’s problem has always been trying to reconcile our affinity for the European social model with our dependence on US multinationals to help pay for it. Amazon alone has invested €22 billion here over the last 20 years and employs 6,500 people.
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The right to request homeworking legislation has its origins in a 2019 European Union directive on work-life balance which itself stems from the European Pillar of Social Rights, a decidedly un-American concept.
As well as the need to transpose this directive into Irish law there was also growing pressure from a populace that had grown used to remote working during the pandemic. We have one of the highest rates of remote working in the EU and it became an issue in the 2020 election with all the political parties promising to give it some sort of legal underpinning.
The generally favourable attitude of US corporations towards remote working at the time — helped by their positive experience — diffused the issue to a certain extent. But the potential consequences of enshrining a right to remote working in law for the attractiveness of Ireland as a location for US corporations was clearly not lost on some people in Government. Likewise, at least some US corporations had misgivings about where it was all going.
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In 2021 the Department of Employment sought submissions from interested parties on the introduction of the right to request remote working.
The American Chamber of Commerce Ireland — which effectively speaks for US multinationals with operations here — participated enthusiastically in the process and also a meeting of the Enterprise Forum which discussed it. The forum is a quango that captures “the views, concerns and suggestions of the enterprise sector”.
By its assessment, the American chamber got pretty much what it was looking for in the legislation that followed. In a press release to members last March following the publication by the WRC of guidelines on how the legislation would work the chamber said the “legislation largely aligns with AmCham’s recommendations.”
It said that it had argued that “at a minimum, the employee should have completed probation period, have completed the requisite training required and developed an understanding of what the role entails”.
They got a six-month waiting period before employees can request remote learning. The chamber said it also sought to ensure that “any legislation ... leaves it to the employer’s discretion to decide on whether an employee can operate remotely”.
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The WRC code gives a list of reasons for refusal, but it is not exhaustive. The legislation only requires employers to consider the request in an “objective, fair and reasonable manner”.
The chamber also welcomed the fact that agreeing or refusing a request does not set a precedent for other employees and the provision that employers can terminate remote working arrangements if they have a “a substantial adverse effect on the operation of their business, profession or occupation”.
There is a danger of overstating the role of the chamber in the framing of the WRC guidelines. Ibec, which represents the bulk of Irish businesses, was looking for much the same thing. However, Ibec does not have the same leverage in a country that relies on six US multinationals for the bulk of its corporation tax revenues, which in turn allows us to enjoy a social safety net that does not exist on their side of the Atlantic.