Balancing employment rights with international competitiveness is a key task of any government. That balance seems badly askew in the Government's National Remote Work Strategy published recently.
There are two key cornerstones to the Government’s strategy – the intention to legislate for the right to request remote working and the intention to issue a code of practice around the right to disconnect.
Is it just me or does anyone else see a “disconnect” between flexible and remote working and the right to disconnect? I can’t spend an hour with the kids in the afternoon because I am not allowed to log on again after they have gone to bed. Really?
My point here, especially in the context of the right to disconnect, is not that some of our workforce do not need protection. They absolutely do. The point is that this should not be a one-size-fits-all approach.
In many sectors it is precisely because we have an open English-speaking, common law economy and less restrictive labour laws than many large EU states that we have attracted far more than our share of high-paying jobs, particularly in the service sector.
Many employers competed to offer flexibility long before Covid, and the mutual premise between employer and employee is that more flexibility should mean more productivity.
The Covid pandemic has reinforced this premise. Both employers and employees know that we don’t need to be in the office from 9am until 6pm to be productive. We are capable of doing what needs to be done to get the work done, and we can choose to do that and rearrange our day so we can take exercise at 11am, get groceries at 3pm, put the kids to bed and work from 8pm to 10pm if we wish.
As the head of Ireland’s largest employment law practice, I and my colleagues in Mason, Hayes & Curran regularly find ourselves in front of foreign (mostly American) multinationals considering whether the time has come to start their European journey and, if so, where they might base their operation.
They usually have a couple of countries in mind, and lawyers like us have to explain the benefits and constraints of Ireland’s system. We can talk about English speakers and high standards of education until the cows come home, but in my experience two key issues always resonate: first, the extent and nature of unionisation and, second, what restrictions exist on working practices.
No distinction
Ireland has outdated working-time legislation which makes no distinction between production operators and CEOs. In place since 1997, the Organisation of Working Time Act places limits on the number of hours an employee can work (48 hours per week, on average) and requires employers to record employees’ working time (including rest breaks) irrespective of flexibility, role, title or pay.
The British government had the good sense to include an opt-out for employees when implementing their working-time regulations. We didn’t. It is worth bearing in mind that the British government (our biggest competitors for lots of the work Ireland Inc pitches for) is now free to do what it wants in relation to whole swathes of employment law. We aren’t.
Why then is the Government considering restricting working practices in a broad-brush way which will undermine our competitiveness and limit personal choice?
Has the Government properly considered the impact on our competitiveness? Are we going to say to Californian companies that Irish employees won’t be allowed to take calls from the West Coast after 6pm in the evening, and that Ireland Inc will go dark for much of the American working day?
Our working-time legislation needs a radical overhaul. What worked in 1997 is no longer relevant, and I would suggest that those above a certain income level should be allowed to bargain freely.
The cap on weekly working hours needs to be removed, the obligation to rigidly record every single employee’s working time and rest breaks needs to be removed. Maybe not for all, but certainly for some. We need to drag the legislation into the 21st century where flexibility means managing one’s own working time.
Decisions
As for the right to disconnect – it needs to be scrapped. What we need is flexibility for certain groups to be able to make adult decisions about when they want to and can work.
If we are serious about being an open economy attracting high-value service sector jobs, then we need to trust that the market for such jobs means that companies will work incredibly hard to attract, retain and motivate employees. That means employers will give flexibility and opportunity in return for productivity, and employees will happily accept that.
Melanie Crowley is head of employment law at Mason, Hayes & Curran
