)
On 7th March 2024, the Workplace Relations Commission (“WRC”) published a Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working. This is a welcome development for both employers and employees as the Code is a key aspect of the Work Life Balance and Miscellaneous Provisions Act, 2023 (“the Act”).
While the Code is not legally binding, it provides practical guidance on best practice to employers and employees regarding how employers can deal with requests made by employees for flexible and remote working. While failure to follow the Code is not an offence in itself, the Code is admissible in evidence before a Court, the Labour Court or an Adjudication Officer of the WRC.
What is ‘Flexible Working’?
The statutory right to request flexible working is set out in the Parental Leave Act, 1998 as amended by the Work Life Balance and Miscellaneous Provisions Act, 2023. Flexible working is defined as “a working arrangement where an employee’s working hours or working patterns are adjusted through the use of remote working arrangements, flexible working schedules or reduced working hours”.
Under the Code, only certain employees have a right to request flexible working for caring purposes. An employee must be:
A parent or acting in loco parentis to a child under the age of 12, or under the age of 16 if the child has a disability or illness, who is or will be providing care to the child; or
Providing or will be providing personal care or support to a specified person (their child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person residing in their household) who is in need of significant care or support for a serious medical reason.
It is worth noting that an employee must have at least 6 months’ continuous service before an approved flexible working arrangement can commence.
What is ‘Remote Working’?
The Act defines remote working 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”.
Under the Code, all employees have a right to request remote working. However, similar to requests for flexible working, an employee must have at least 6 months’ continuous service before an approved remote working arrangement can commence.
Making a Request
The Code provides that an employee must submit their request for flexible or remote working to their employer as soon as is reasonably practicable, but not later than 8 weeks before the proposed starting date of the arrangement. Any request must be in writing and signed by the employee, and must confirm:
Details of the proposed arrangement (days of the week, duration);
The proposed commencement date;
Reasons for the request; and
In the case of remote working, details of the proposed working location and its suitability.
Importantly, an employee must provide any information which the employer may reasonably require in relation to the request.
Considering a Request
Requests for flexible and remote working must be considered within the timeframes set out in the Act. Employers should respond to requests as soon as reasonably practicable, but no later than 4 weeks from receiving a request. This period can be extended for a further period not exceeding 8 weeks where an employer has difficulty in assessing a request.
Within 4 weeks of receiving a request for flexible or remote working, an employer must:
Approve the request; or
Refuse the request; or
Notify the employee that an extension of time is required.
In the case of approval, an agreement must be signed by both parties setting out the details of the arrangement.
In the case of refusal, the employer must notify the employee in writing of the reasons for refusal.
Where an employer fails to consider a request, an employee may be awarded compensation of up to 20 weeks in the case of flexible working, or up to 4 weeks in the case of remote working by the WRC.
Termination of an Arrangement
The Code provides that an employer may terminate an approved remote or flexible working arrangement if it would have, or is having, “a substantial adverse effect on the operation of their business, profession or occupation”.
An employer must notify an employee in writing of the proposal to terminate the arrangement and outline the grounds for termination. Furthermore, an employer must give the employee 7 days after receipt of the notice to make representations to the employer, which the employer must duly consider before deciding whether to provide notice of termination.
It is worth noting that an employee may also request by written notice to terminate a remote or flexible working arrangement and return to their original working arrangement.
Protection against Penalisation
An employer must not penalise an employee for proposing to or having exercised their rights under the Act to make a request for remote or flexible working or requesting to return to a previous working arrangement. Failing this, an employee may make a complaint to the WRC.
Maintaining Records
Employers must maintain adequate records of approved arrangements for a period of three years. Employers who fail to do so are liable on summary conviction to a fine of up to €2,500. Specifically, records must include the following information:
The period of employment of each employee; and
The dates on which each employee was on an approved remote or flexible working arrangement; and
The number of times each employee was on an approved remote or flexible working arrangement.
Employers must also retain records of refused arrangements for a period of one year, to include all notices given or received by the employer or employee.
Other Considerations
It is important that the requirements of working time legislation (Organisation of Working Time Act 1997) and workplace health and safety legislation (Safety, Health and Welfare at Work Act 2005) are adhered to by employers in the context of flexible and remote working arrangements.
Conclusion
The Code provides practical guidance for both employers and employees on the new statutory rights of employees to request flexible and remote working. The Code is particularly beneficial for employers as they navigate the complexities of new working arrangements.
Further Information
For further details on flexible and remote working or for any ancillary Employment advice, please contact Partner Marc Fitzgibbon or Solicitor Nikita Kelly in our Employment Team.