The Workplace Relations Commission (“WRC”) has now published its highly anticipated Code of Practice on the right to request flexible working and the right to request remote working (the “Code of Practice” or the “Code”).
This Code of Practice was requested by the Minister for Enterprise, Trade and Employment. It provides guidance to employers and employees in relation to making and responding to requests for flexible or remote working in light of the rights and obligations set out in the Parental Leave Acts 1998-2023 as amended by the Work Life Balance and Miscellaneous Provisions Act 2023 in relation to requests for flexible working, and the Work Life Balance and Miscellaneous Provisions Act 2023 in relation to requests for remote working.
The WRC carried out a public consultation when preparing the Code of Practice and received over 50 submissions. The WRC also engaged with representatives of employers and employees when finalising the Code of the Practice.
In its Foreword the Code of Practice highlights the profound changes that have occurred in our working lives in recent years, and the increased focus on fostering participation in the workforce through flexible and remote work arrangements. The Code itself sets out practical guidance on how to approach requests for flexible and remote working and provides a template Work Life Balance Policy and application form. The aim of this article is to provide an overview of the main provisions of the new Code of Practice.
1. Right to Request Flexible Working
The Code of Practice highlights that flexible working can take a variety of different forms, including for example part-time work, job-sharing, flexitime (where an employee can vary their start and finish times while completing their required hours of work), and compressed working hours. An employee can request flexible working from their first day in a new job, however they must complete a minimum of six months continuous employment before an approved flexible working arrangement can start. To make a statutory request for flexible working an employee must be:
An employee should submit their request for flexible working arrangements as soon as reasonably practicable but not later than eight weeks before the proposed starting date. The request should be in writing and signed by the employee. Online application forms are also acceptable. A request for flexible working must include information on the form of flexible working being requested; the proposed starting date; and the proposed duration of the arrangement. An employer may ask an employee for additional information they reasonably require, to help with the decision-making process.
Employers should respond to requests for flexible working arrangements as soon as is reasonably practicable but not later than four weeks after receiving the request. Employers should respond within four weeks and either:
Employers must consider requests for flexible working having regard to the needs of the business, and the employee’s needs.
The Code of Practice provides for changes to be made to a flexible working agreement by agreement between the employer and employee, which should be reflected in writing. The Code also provides for termination of an agreed flexible working arrangement by an employer in certain circumstances, if the employer is satisfied that the arrangement would have or is having a substantial adverse effect on the operation of the business, or the employer has reasonable grounds for believing the arrangement is being abused. An employer who proposes to terminate a flexible working arrangement must notify the employee in writing of the proposal to terminate the arrangement, and provide details of the grounds for terminating the arrangement. The employee should be given seven days to make representations to the employer, who must consider these representations before deciding whether or not to give notice of termination. An employee can also request to return to his/her original working arrangement earlier than had been approved, by providing reasons and a proposed date of return.
Once an agreed flexible working arrangement has come to an end, the employee is entitled to return to the original working arrangement they held immediately beforehand.
2. Right to Request Remote Working
The meaning of “remote working arrangement” for the purposes of the Work Life Balance and Miscellaneous Provisions Act, 2023 is 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 the employer’s place of business without change to the employee’s ordinary working hours or duties. In contrast to the position in respect of statutory flexible working requests, all employees have the right to make a statutory request for remote working. An employee can request remote working from their first day in a new job, however they must complete a minimum of six months continuous employment with their employer before an approved arrangement can start. An employee should submit their request for remote working arrangements as soon as reasonably practicable but not later than eight weeks before the proposed starting date.
Similar to the request process for a flexible working arrangement, the request for remote working must be in writing and an online application form satisfies this requirement. The request must include details of the proposed remote working arrangement (e.g. how many days, which days), the proposed start and end date and reasons for requesting remote working. This is an employee’s chance to explain how they can continue to perform their role remotely to the required standard (essentially making their case to their employer). The application should also include details of the proposed location and its suitability for work, e.g. a suitable workstation with adequate privacy.
An employer who receives a request for remote working must respond as soon as reasonably practicable but not later than four weeks after receiving the request. This period can be extended for a period not exceeding eight weeks if the employer experiences difficulty assessing the viability of the request. An employer must consider the request in an objective, fair and reasonable manner, having regard to their own needs, the employee’s needs and the guidance contained in the Code of Practice. The Code of Practice contains a non-exhaustive list of questions that can be considered by an employer, having regard to the role itself and the employee. Examples include:
The Code of Practice suggests that where an employer cannot approve the remote working request sought by an employee, the parties should consider an alternative arrangement where this is feasible. As with the guidance in relation to flexible working arrangements, the Code of Practice provides that an employer can terminate an approved remote working arrangement in certain circumstances, if the employer is satisfied it would have or is having a substantial adverse effect on the operation of the business or the employer has reasonable grounds for believing the arrangement is being abused. If that is the case, the employee must be given the notice in writing of the intention to terminate the arrangement and be given the opportunity to make representations.
Takeaway for Employers
Employers should note that nothing in the legislation or in the Code of Practice prevents them from implementing an arrangement more favourable to employees than their entitlements under the relevant legislation.
In addition to providing guidance on how requests for flexible and remote working ought to be made and handled, the Code also provides guidance in respect of resolving any conflicts that may arise in respect of flexible or remote working arrangements.
Employers must be aware that the legislation provides protection for employees from penalisation for proposing to or exercising their rights to request remote working or flexible working, or requesting to return to a previous working arrangement. While a failure to follow the Code of Practice is not an offence, the Code is admissible in evidence in any proceedings before a Court, the Labour Court, or the WRC.
It is, however, an offence not to comply with certain provisions of the legislation. A breach of the 2023 Act may be referred to the WRC by an affected employee within six months of the breach (or within 12 months if an employee can establish “reasonable cause” for a delay). Neither an Adjudication Officer in the WRC nor the Labour Court has the power to assess the merits of any decision made by an employer in relation to flexible working or remote working. This means that they cannot look behind the merits of the decision, but can only look at the process which led to the employer’s decision. The WRC (or Labour Court on appeal) may direct an employer to comply with the legislation and/or pay compensation as follows:
Employers may also be subject to a €2,500 fine on summary conviction if they fail to keep records of approved statutory remote working and flexible working arrangements, which must be kept for three years.
Employers should be cognisant that they may be in receipt of sensitive personal data when processing requests for flexible or remote working arrangements. This data should be treated with due care in line with GDPR obligations.
Authors – Tara Kelly and Jenny Wakely
The Code of Practice is available here
31st March 2024
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