The Workplace Relations Commission (the “WRC”) has published the long-awaited Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working (the “Code”). The Code sets out steps to assist employers and employees in navigating requests for flexible working for caring purposes and remote working in compliance with the provisions of the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”). It is important to remember that neither the Code nor the Act give a legal right to flexible or remote working.

Specifically, the purpose of the Code is to set out the detail of the processes that should be followed regarding the making and managing of requests for flexible and remote working and recommends that employers should have an all-encompassing Work Life Balance Policy to include both flexible working for caring purposes and remote working.

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Definition of Flexible Working for Caring Purposes and Remote Working

The Code helpfully defines what constitutes Flexible Working and Remote Working.

  • Flexible Working is an arrangement where the working hours or working pattern of an employee are altered. It can include part-time work; term-time work; job-sharing; flexitime; compressed working hours; or remote working.
  • Remote Working is defined as an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties.

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The Right to Request Flexible Working and Remote Working

An employee can make a request for Flexible Working or Remote Working from their first day of employment. Any such arrangement can start once the employee has 6 months’ continuous service.

In terms of eligibility, any employee has the right to request Remote Working arrangements.

The statutory right to request Flexible Working only extends to employees who:

  • Are the parent or acting in loco parentis to a child under 12, or 16 if the child has a disability or illness and the employee is or will be providing care to the child; or
  • Provide or will provide personal care or support to a child, spouse, civil partner, cohabitant, parent, grandparent, sibling or a person who lives in the same household as the employee. The person in question must be in need of significant care or support for a serious medical reason.

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Making a Flexible Working and Remote Working request

A Flexible Working or Remote Working request must be made in writing and signed by the employee. A submission made through an online process will also be acceptable. The request must be submitted to the employer as soon as reasonably practicable, but no later than 8 weeks before the proposed starting date of the arrangement.

The Code also sets out the information that should be included by the employee to assist the employer in the decision-making process.

  • In terms of Flexible Working, it should include the form of Flexible Working being requested; the reasons for the request and the proposed start date and duration. Given the employer can seek such further information as it reasonably requires to make a decision, employees should be encouraged to include all relevant information and documentation such as details of whom the request for Flexible Working for caring purposes is in respect of and if it is a child, the birth certificate or certificate of placement should be included. In the case of a specified person in need of significant care the details of the relationship to the person; nature of the care and evidence such as a medical certificate should be provided.
  • In terms of Remote Working, the employee should include details of the proposed Remote Working arrangement, start and end date, if relevant, and the reasons for the request. The application should also include details of the proposed location and the suitability of the location. The Code also sets out examples of the reasons that could be put forward by the employee such as reducing the daily commute and carbon foot-print; optimising quality of life outside normal working hours; personal or domestic circumstances; neurodiversity or special medical needs or circumstances which could favour a quiet working environment or facilities not always available in the office.

The Code also sets out that both employers and employees need to be mindful of GDPR in relation to the provision and processing of personal data to include sensitive personal data. Employers should only request information that is necessary and essential for them to make their decision.

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Right to a response to a Flexible Working and Remote Working request

The employer must respond to a Flexible Working or Remote Working request, in writing, as soon as reasonably practicable, but no later than 4 weeks after receiving the request. This period can be extended for a further period not exceeding 8 weeks if the employer experiences difficulties in the assessment of the request. Where a request is approved, an agreement setting out the details of the agreed arrangement, the start date and duration of the arrangement should be prepared and signed by both the employer and employee.

Employers should be aware that accepting a Remote Working request may cause the employee’s terms and conditions of employment to change in line with the Terms of Employment (Information) Act 1994.

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Consideration by the employer of a Flexible Working or Remote Working request

An employer who receives a request for Flexible Working or Remote Working should consider the request, having regard to:

  • The needs of the business;
  • The needs of the employees; and
  • The Code.

An employer should consider a request for Remote Working or Flexible Working in an objective, fair and reasonable manner. The Code also gives some guidance as to the questions an employer could consider when reviewing a request for Remote Working or Flexible Working, some examples include:

  • The type of work;
  • What are the employee’s key duties?
  • Does the role include tasks that must be performed or are more efficiently performed on-site?
  • Does the role require face-to-face engagement with clients, customers or other employees on-site or at other locations?
  • Does the employee understand their role and require minimal supervision to complete their tasks?
  • Has the employee demonstrated an ability to meet deadlines or any other business requirements?
  • Does the employee understand the need to demonstrate flexibility when required to attend on-site outside of their agreed arrangement in order to meet business needs?

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Changes to and termination of arrangements

Any Flexible Working or Remote Working arrangement can be amended or terminated if agreed in writing between employee and employer. It must also be noted that the template policy as outlined in the Code provides for a trial period and/or review(s) of an employee’s Flexible Working or Remote Working arrangement.

A Flexible Working or Remote Working arrangement can also be terminated by the employer, if the arrangement would have or is having a substantial adverse effect on the operation of the business, profession or occupation for specified reasons to include seasonal variations, the nature of the duties and any other relevant matters. The reasons for terminating must be objective, fair and reasonable and should be set out in a clear manner. The Code also provides that alternative arrangements should be considered other than termination.

In such circumstances, the employer must give 4 weeks written notice to the employee setting out the reasons for termination and specifying the date on which the employee must return to the original working arrangement. The employee must be given 7 days to make representations in relation to the proposal to terminate and the employer must consider any representations made before deciding to terminate the arrangement.

An employee may request to return to their original working arrangements earlier than initially approved by written notice to the employer. The notice must set out the reasons for the early return and proposed date of return.  The employer has 4 weeks to consider the request and give notice to the employee approving or refusing the request to return and set out the reasons for any refusal.

Upon expiration of any arrangements, the employee is entitled to return to the original working arrangement.

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Abuse of an arrangement

The Code states that a Flexible Working arrangement must be used for the purpose for which it has been approved. An employer may give written notice of termination of the arrangement if the employer reasonably believes that the Flexible Working arrangement is not being used for such a purpose.

In the case of a Remote Working arrangement, the Code states that if the employer reasonably believes that the employee is not fulfilling all of the requirements of the employee’s role, written notice of termination of the Remote Working arrangement may be given to the employee. Equally, the employer must set out the reasons in the notice and set out the date of return to the original working arrangement.

In both cases, the employer must give the employee 7 days after receipt of the notice to make representations in relation to the proposal. The employer must consider any representations made by the employee before deciding whether to terminate the arrangement or not. An employee is required to return to their original working arrangement 7 days after receiving notice of termination for abuse.

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Penalisation

An employer must not penalise an employee for proposing to or having exercised their rights to make a request for Flexible Working or Remote Working or a request to return to a previous working arrangement.

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Raising concerns under the Code

The Code encourages employees and employers to resolve any issues relating to the application of the Code at local level. In the event that there is a collective agreement between a trade union and the employer, the parties should refer to the collective agreement for any grievances.

The Code provides that where an informal process fails to address the issue, then the company’s grievance procedure should be utilised.  

Any breach of the Act may be referred to the WRC within 6 months of the date of the breach with a possible extension to 12 months. Under the Act, neither the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision.

The WRC, or the Labour Court on appeal, may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding 4 weeks’ remuneration in relation to Remote Working and 20 weeks remuneration in relation to Flexible Working.

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Recordkeeping

Appropriate records in relation to approved Flexible Working or Remote Working arrangements as outlined in the Code must be kept by the employer for 3 years. Failure to maintain records exposes an employer to liability to a fine of up to €2,500 on summary conviction.

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Next Steps

Employers should now review their remote and flexible working policies to ensure they comply with the Code and also consider the introduction of a Work Life Balance Policy to include both flexible working for caring purposes and remote working. Employers should also be cognisant of the timelines that are set out in the Act and update procedures to ensure they will be compliant. Data protection policies should also be reviewed to ensure they are consistent with the Act.

For more information or assistance with the implementation of the Code, please contact Caoimhe Heery, Claire McDermott or any member of the Flynn O’Driscoll Employment Team.

This article is current as at 05/04/2024 and is provided for information only and does not constitute legal advice.

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