Right to request remote and flexible working comes into operation today

Since the introduction of the Work Life Balance and Miscellaneous Provisions Act 2023, several important new family related rights have been introduced. These include a right for employees who are carers or parents to five days’ unpaid leave for medical care purposes and extending breastfeeding breaks (from six months to two years) which came into effect on 3 July 2023, and a right to five days paid domestic violence leave which commenced in November 2023. However, it has been the sections of the Act entitling employees to request remote and flexible work which have been most eagerly awaited for many employers and employees alike.

The Code of Practice

The Code provides guidance to employers on how to manage a request and what they should consider when a request is made. It is not an offence to fail to follow the Code, but a failure to do so is admissible in evidence before the WRC in any employment rights claim.
Following a proper process will be key to dealing with remote and flexible working requests. The Code outlines practical questions and guidance, a template work-life balance policy, (which reflects how many employers are already operating in practice, for example, with anchor/on-site days), as well as really helpful template remote working and flexible working request forms. A copy of the Code can be found here.

Employees can make a remote working (RW) or flexible working (FW) request from their first day of employment but must have 6 months employment before any arrangement starts. Any request must be made at least 8 weeks before the date the employee wants to start the proposed arrangement.

Remote Working Request

An employee must set out in writing (which can be an online form): (a) how many days they wish to work remotely, and which days; (b) proposed start date, and end date, if not a permanent request; (c) the reasons for the request; (d) details of the proposed work location; and (e) information of the suitability of the proposed work location.

Potential reasons for RW include: reducing daily commute and carbon footprint, optimising quality of life outside of normal working hours; personal or domestic circumstances, neurodiversity or special medical needs which could favour a quiet working environment or facilities not always available in the workplace.

The suitability of the proposed work location includes the distance to the employer’s workplace, privacy of the workstation, data and confidentiality security, as well as a secure internet connection which can be accessed by the employer’s IT department.

Employees are also recommended to set out how they are confident they can continue to perform their role to the required standard while working remotely.

Employers must respond with 4 weeks of the request to:

• Approve the RW request, including an agreement to be signed by the employer and employee;
• Refuse the RW request setting out in writing reasons for the refusal; or
• Explain that it has a difficulty assessing the viability of the RW request and needs up to 4 more weeks to assess the request.

Considering a remote work request

Employers must consider a RW request in an objective, fair and reasonable manner. Employers can consider both the suitability of the role and the suitability of the individual employee when assessing the request, taking into account the business needs, employee’s needs and requirements of the Code.

The Code helpfully includes a list of practical questions for the employer to consider both with regard to the role and with regard to the individual making the request (which are non-exhaustive and not all matters might be relevant in all situations). However, the extent of the matters listed make it clear that a thorough consideration of the request is expected and required.

On the suitability of the role

An employer should consider how much access to on-site equipment/technologies is required, how many on-site tasks are required, how much face-to-face engagement with clients, customers or employees are required on-site or at other locations, how the proposal will impact service quality or operational arrangements and whether there are technological solutions to mitigate those issues, as well as any health and safety issues.

On the suitability of the employee

An employer can take into account the employee’s IT skills, their understanding of their role, what supervision they require, whether they are on an extended probation period, whether they have satisfactory attendance records, whether there is an ongoing performance improvement process, disciplinary process or live disciplinary action, whether they have demonstrated their ability to meet deadlines/business requirements, whether the employee understands the need to demonstrate flexibility when required to attend on-site outside of the agreed arrangement for business needs, as well as attend meetings remotely online, and whether employees need to be on-site to collaborate with colleagues in a team environment in a face-to-face setting.

Employers should also consider what alternative arrangements to remote working might be feasible if a RW request cannot be granted.

Flexible Working Request

The Code makes it clear that flexible working incorporates a wide range of different ways of working, or reduced hours and can include arrangements such as part-time working, job-sharing, term-time work, flexi-time, compressed working hours and remote working.

Employees with a child under 12 years old (which includes employees acting in loco parentis to a child), or under 16 years old if the child has a disability or illness can make a FW request to provide care to the child.

Employees who provide personal care or support to a child, partner, cohabitant, parent, grandparent, sibling, or someone who lives with the employee, where that person is in need of significant care or support for a serious medical reason can make a FW request to provide care to that person.

An employee must set out in writing (which can be an online form): (a) the form of FW being requested; (b) proposed start date and end date; and (c) grounds for requesting FW – age of child, relationship to person who requires care, etc.

Employers can request some information about the employee’s child or person they care for to support the request (subject to data protection obligations).

Employers must respond with 4 weeks of the request to:

• Approve the FW request, including an agreement to be signed by the employer and employee;
• Refuse the FW request setting out in writing reasons for the refusal;
• Explain that it has a difficulty assessing the FW request and needs up to 4 more weeks to assess the request.

Employers need to consider both the needs of business and the needs of the employee. The Code doesn’t provide specific details on what an employer needs to consider when assessing a FW request, but rather refers to the guidance for considering a RW request, which it says may be helpful for considering FW requests.

Termination of a RW or FW arrangement

Employers can terminate an approved RW or FW arrangement if there is a substantial adverse effect on the operation of the business because of specific reasons which are set out in the Code in more detail, including the required process to be followed. The processes for making changes and/or returning to the previous working arrangements are also set out in the Code.

For RW working only: If an employee is not meeting the requirements of their role while working remotely, an employer can give notice of termination of the RW arrangement setting out the reasons why and the date for return to the previous working arrangements. More details on the process are set out in the Code.

For FW working only: If an employer has reasonable grounds for believing that the FW arrangement is not being used for the purpose of caring for a child or person in need of care, the Code sets out the process to be followed which could result in the termination of the FW arrangement.

Concerns to be raised as a grievance

If an employee feels that their request hasn’t been considered in line with the Code or legislation, they are encouraged to raise their concerns informally with their employer initially, and then raise a formal grievance if still unresolved, before raising a complaint to the WRC.

The Code also suggests that larger organisations could designate a member of HR to be the point of contact for RW and FW issues.

Role of the WRC

Where a complaint is made about the right to request RW or FW, the Code sets out that the WRC cannot assess the merits of any decision made by an employer on the RW or FW request, only on the process which led to the employer’s decision. This means that the WRC cannot look behind the merits of the employer’s decision to assess the fairness or otherwise of it’s decision.

The maximum award for a breach of the right to request RW is 4 weeks’ pay and for a breach of the right to request FW is 20 weeks’ pay. The WRC may also direct the employer to comply with specific sections of the Act. Any WRC hearings will normally take place in public and any decisions will again normally name the parties, so there are also publicity and reputational risks.

However, to limit risks of indirect discrimination claims on grounds of gender or family status, and to ensure good employee relations, employers should seek to be consistent and fair in their approach to requests and carefully consider the reasons why it cannot accommodate the RW or FW request and explain these reasons to the employee as well as set out them out in writing as required under the process.

Employers must keep specific records of RW and FW arrangements taken by employees for up to 3 years or risk a fine of up to €2,500.

Employees are also protected from penalisation.

What should employers do now?

While many employers have already introduced policies and procedures for remote working, they will need to compare their existing policies against the new code of practice and amend where necessary. Where employers already have existing arrangements with employees allowing them to work remotely, they will still be required to deal with statutory requests from employees. It is also important for employers to remember that remote work does not necessarily mean working from home, and that flexible work requests (which are different to remote work requests) will be limited to employees in caring roles.

For many employers, working arrangements continue to evolve and change and so they will need to stay ahead of these developments in 2024 while balancing the needs of the organisation.