Remote and Flexible Working is here (or is it?!)

While some provisions were commenced at this point, and a number of others (including those in relation to domestic violence leave and leave for medical care purposes) were commenced in November 2023, we were still awaiting the hotly anticipated provisions for remote and flexible working. This changed yesterday, 7 March, when the Workplace Relations Commission (the “WRC”) published their Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working (the “Code”). The Code has now enabled Ministers Coveney and O’Gorman to commence the final provisions of the Act. In this briefing, we will discuss an employer’s obligations in relation to requests for Remote and Flexible Working Arrangements.

Right to Request Remote Working Arrangements

While all employees can request a remote working arrangement from the first day of employment, they must comply with the following:

• They must have 6 months’ continuous service before such an arrangement can begin.
• The request must be submitted at least eight weeks prior to the proposed commencement of the arrangement.
• The request must be made in writing.
• The request must include details of the remote working arrangement, the proposed start and end date, the reasons for requesting remote working, details of the proposed location, and information on the suitability of the proposed location.
• Employees will have to confirm to their employer that the proposed location is suitability equipped to allow the employee to perform their duties effectively; is suitably private; and will ensure that company data and confidential information is kept secure (a full list is provided for at page 16 of the Code).

Sufficient reasons for requesting remote working can include reducing the employee’s daily commute and carbon footprint; optimising their quality of life outside of working hours; personal or domestic circumstances; or in the case of neurodiverse employees, where they have special needs which could favour a quiet working environment.

What are an employer’s obligations?

An employer must respond to the request within four weeks, which can be extended to eight weeks if the employer is having difficulty assessing the viability of the request. In any event, the employer must write to the employee within four weeks of receiving the request, either:

• approving the request, and including an agreement setting out the details of the arrangement;
• refusing the request and setting out the reasons for refusal; or
• notifying the employee that more time is needed to assess the request, and setting out the length of extension.

In its response to a request, an employer must consider the needs of both the organisation and of the employee. This includes considering both the suitability of the role and of the individual employee for remote working – and an employer must do so in an objective, fair and reasonable manner.

In assessing whether a role is suitable for remote working, employers can consider the following questions (further examples can be found at page 17 of the Code):

• Can any of the key duties for this role be undertaken remotely?
• Does the role include access to equipment or technologies only available on-site?
• Does the role require face-to-face engagement with clients, customers or other employees, on-site or at other locations?
• Do any health and safety issues arise if activities are undertaken remotely?

In assessing whether an individual employee is suitable for remote working, employers can consider the following questions (further examples can be found at page 18 of the Code):

• Has the employee met the performance standards and requirements of their role?
• Is the employee subject to an active performance improvement plan, or an ongoing disciplinary process?
• 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?
• Does the employee need to be on-site to collaborate with colleagues in a team environment in a face-to-face setting?

Right to Request Flexible Working Arrangements

Employees who are caring for a child or another specified person can also request a flexible working arrangement. As with remote working requests, those employees can request a remote working arrangement from the first day of employment, they must have 6 months’ continuous service before such an arrangement can begin. The request must be submitted at least eight weeks prior to the proposed commencement of the arrangement, and must be made in writing

Who is eligible?

To make a request for a flexible working arrangement, an employee must be:

• The 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, and who is or will be providing care to the child; or
• Providing or will provide personal care or support to a specified person, namely the employee’s child, spouse or civil partner, cohabitant, parent or grandparent, sibling or another, non-relative household member.

The person in respect of whom the employee is providing care or support to must be in need of significant care or support for a serious medical reason.

Applying for Flexible Working

A request for flexible working must include the form of flexible working being requested – this can be part-time work, term-time work, job-sharing, flexitime, compressed working hours, remote working, or a combination of any of these. The request must also include the proposed starting date and duration of the arrangement.

Employees are also encouraged to include more information in their application, so as to expedite the process. Employers will be entitled to request this information as part of a flexible working request:

• Details of whom the flexible working request for caring purposes is in respect of – ie a child or specified person; and
• In the case of a child, a copy of the child’s birth certificate or certificate of placement from an adoption agency or Tusla; or
• In the case of a specified person, the employee’s relationship with the person and the nature of the significant care required. An employee must also provide a medical certificate (or other sufficient evidence) as reasonably required to show that the person concerned is in fact in need of significant care or support for a serious medical reason.

When considering flexible working requests, employers may wish to refer to the aforementioned considerations in respect of remote working requests – but they are under no obligation to do so. Employers are merely required to consider the flexible working request, having regard to the needs of the business and those of the employee.

Changing or Ending a Remote or Flexible Working Arrangement

The employer and employee can agree to a change (in writing) to a flexible or remote working arrangement which has already been signed, before or after it begins. A change can involve postponing the arrangement to an agreed date, curtailing the period of the arrangement, or varying it in some agreed way.

In respect of flexible working arrangements, if an employee falls ill or incapacitated before the arrangement begins, the employee can postpone it until they recover.

An employer is also entitled to terminate an approved remote or flexible working arrangement, before or after it begins, if the employer is satisfied that such an arrangement is having or would have a substantial adverse effect on the operation of the business. This can be because of:

• Seasonal variation in the volume of the work concerned;
• The availability of another person to carry out the duties of the employee in the employer’s place of business;
• The nature of the duties of the employee; or
• Any other matters relevant to the substantial adverse effect on the operation of the business.

In such circumstances, the employer can give the employee written notice of the termination of the agreement after considering the business’ needs, the employee’s needs (being the reasons they put forward in their application for the arrangement) and the requirements of the Code. This notice must set out the reasons for terminating the agreement, which must be fair, objective and reasonable. It must also set out the date on which the employee will have to revert to their original working arrangement, being at least four weeks after notice is given unless the arrangement is due to finish up less than four weeks after this date. The employee must also be given seven days to make representations to the employer in relation to their proposal to terminate the agreement, and the employer must consider such representations before making a final decision.

Refusing Requests and Appealing Decisions

If an employee feels that a remote or flexible working request has not been considered in line with the legislation and/or the Code, the WRC has encouraged employers and employees to try to resolve issues first at a local level. If an informal process has not been successful in resolving the issue, employees should then exhaust the internal grievance procedures, before considering taking a claim to the WRC in respect of a refusal to allow a remote or flexible working arrangement.

The WRC nor the Labour Court have any jurisdiction to challenge the merits or reasoning of any decision by an employer to refuse a request for a remote or flexible working arrangement. This means that they cannot look behind the merits of the decision, and can only look at the process which led to the employer’s decision to refuse a request.

If an employer is found to have breached the Act, the WRC can award a successful employee up to four weeks’ remuneration for breaches of the remote working provisions; and up to twenty weeks’ remuneration for breaches of the flexible working provisions. The WRC can also make an order directing the employer to comply with specific sections of the Act.

Key Takeaways

The first step is to put a flexible and remote working policy in place. This will provide the framework for receiving and assessing requests for flexible or remote working requests, and will help to ensure your organisation follows correct procedures when dealing with requests. If you would like advice on a flexible and remote working policy, our experts are here to help.

This right is very tightly bound in process, both for the employer and the employee. If the employee does not comply with all the steps, then it is likely that an employer can push back on the request. Equally, the only sanction which can be made by an employer (under this legislation) is an award where they have not complied with the process. We predict that this right will become a bargaining tool is respect of other rights, such as discrimination or victimisation under the Employment Equality Acts, or the Protected Disclosures legislation, where the WRC has the power to grant much higher awards.