8 March 2024
The Workplace Relations Commission (‘WRC’) has issued the code of practice on the right for employees to request remote working arrangements and the right for parents and carers to request flexible working arrangements.
The Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working (the ‘Code’) has been approved by the relevant ministers following public consultation and engagement with Ibec and ICTU.
The Code is in response to the enactment of the Work Life Balance and Miscellaneous Provisions Act 2023 (the ‘2023 Act’) and reflects the fact that Ireland has now fully transposed the EU Work Life Balance Directive.
Aoife Newton and our Employment Law team explain the Code and its implications below.
The Code provides guidance to employers and employees on the right to request flexible working arrangements for caring purposes, and the right to request remote working. These rights stem from the Work Life Balance and Miscellaneous Provisions Act 2023 and the Parental Leave Acts 1998-2023.
The Code is particularly useful for employers developing or amending their work-life balance policy. It acknowledges that not all workplaces will be conducive to remote working. Policies should best reflect the individual workplace and be proportionate to the size and resources of the organisation.
In addition to set timelines for considering and processing requests for both flexible arrangements and remote working, the Code includes practical guidelines on when arrangements can be terminated and confirms certain matters on record keeping and penalties.
The Code (and the template work-life balance policy included in the Code) includes some useful reminders for employers and employees, such as:
Requests for both flexible working and remote working can be made from day one of employment, however, such arrangements do not need to start until the employee has completed a minimum of six months’ continuous employment. All flexible and remote working request must be made not later than eight weeks before the proposed start date of the new working arrangement.
The requests can be made in writing or online but need to be signed by the employee and provide details on the type of remote working requested (or the form of flexible working requested); the proposed start date and end date (if relevant); and the reasons for the request. The Code includes template applications for both remote and flexible working requests.
Supporting documents for flexible working requests may need to be provided by the employee e.g., a birth certificate or a medical certificate. Each written request is to include details of how and why the arrangements will work for both employer and employee. For example, those requesting remote working, should include details of the remote location of work along with the suitability of the proposed location.
Whilst there is no obligation for the employer to agree to all requests, they must consider each request. In assessing requests for both flexible working and remote working arrangements, employers should consider: the needs of the business; the needs of the employee (and why they are making the request); and the requirements of the Code. Employers should consider all requests in an objective, fair and reasonable manner.
In respect of remote working requests, matters to be considered can include whether the employee is subject to a training programme or apprenticeship which requires supervision; whether there are technological solutions to mitigate issues arising from remote working; and, whether any health and safety issues arise if activities are undertaken remotely.
Employers are obliged to respond within four weeks of receiving a request. This period can be extended up to a maximum of eight weeks, where there are difficulties in assessing the viability of the request.
If the request is approved, an agreement setting out the details of the remote working or flexible working arrangement, must be prepared and signed by both parties. If the employer rejects the proposed new working arrangement, they must provide reasons for same.
Agreements relating to a remote working request should be appended to the employee’s contract of employment. For both remote and flexible working requests, a copy of the agreement should be provided to the employee and a copy should be retained by the employer.
Employers may terminate an approved remote or flexible working arrangement before or after it has started if the employer is satisfied that it would have (or is having) a substantial adverse effect on the operation of business, profession, or occupation.
Notice to this effect should set out the reasons for termination and specify the date on which the employee must return to their original working arrangement.
This date should not be earlier than four weeks from the date of receipt of the notice of termination (unless the date the approved arrangement comes to an end is less than four weeks from the date of receipt of notice).
The employer must notify the employee in writing of the proposal to give notice to terminate the arrangement. The employee then has seven days to make representations in relation to the proposal. Employers must consider any representations before deciding to give notice of termination referred to above.
Employers must keep a record of any of their approved remote working or flexible working arrangements for a period of three years. Employers who fail to do so may face a fine of up to €2,500.
Employers should note that the process which led to their decision to refuse a remote or flexible working request will be examined and they should keep details of all requests on file for at least one year.
Employers are prohibited from penalising employees for proposing to or having exercised their right to make a request for remote or flexible working, or for any request to return to a previous working arrangement.
If an employee believes that their alternative working request has not been considered in line with the legislation and/or the Code, they are encouraged to use the informal company grievance procedure. Failing this, the issue may be referred to the WRC.
Should a claim succeed, for remote working requests, an AO (or the Labour Court on appeal) may direct the employer to comply with the legislation and/or may make an award of compensation to the employee, not exceeding 4 weeks’ remuneration.
For claims relating to flexible working requests, an AO (or the Labour Court on appeal) may direct the employer to comply with the legislation and/or may award compensation to the employee, not exceeding 20 weeks’ remuneration.
Employers should be mindful that the implementation of flexible working and remote working arrangements may require changes to employees’ terms and conditions in line with the Terms of Employment (Information) Act 1994 (as amended).
Our Employment Law team can advise on how the changes brought in by the Code will impact your HR operations and can guide you through the documentary process to ensure compliance with considering and responding to requests for alternative ways of working.
Please contact a member of the team for more information.
