by Anne Lyne March-27-2024 in Employment Law, Partnership Law
The long-awaited Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Work (the “Code”) was published on 7 March 2024. Its aim is to strike a better balance between work and family life for workers in Ireland.
The changes to the legislation are on foot of the EU Work Life Balance Directive, which has now been fully transposed in Ireland.
The Code encourages employers to develop a Work – Life Balance Policy, clearly outlining how the organisation proposes to approach flexible and remote work.
Flexible Working
What is Flexible Working and who can avail of it?
Flexible working is now considered a statutory right under the Parental Leave Acts, 1998 – 2023, as amended by the Work Life Balance and Miscellaneous Provisions Act, 2023.
The Code describes ‘Flexible Working’ as a working arrangement where an employee’s working hours or working patterns are adjusted through the use of remote working arrangements, flexible working arrangements or reduced working hours.
Flexible Working has been designed for employees with caring responsibilities. For the request to be considered, an employee must satisfy certain requirements such as, be the parent to a child under the age of 12 (or under the age of 16 if the child has a disability or illness) or providing personal care or support to a specified person such as an employee’s child, spouse or civil partner.
The Process
Employees must have at least 6 months continuous service with the employer before their request can be considered. Employees are required to submit their request in writing at least 8 weeks prior to the proposed start date of their flexible working arrangement.
Employers may request additional information from employees in support of their request for flexible working arrangements. The request must be approved within 4 weeks of receipt. If an employer refuses the request, an employee must be provided with the reasons for the refusal. Alternatively, a notice may issue in writing informing the employee that more time is required to consider their request, which cannot, in aggregate, exceed 8 weeks.
Employers must take into consideration their own business needs as well as the employee’s needs before approving or refusing the request. Changes to the agreed flexible working arrangements must be agreed in writing and may include:
- Postponing the request;
- Curtailing the request; or
- Varying the request.
Employees should be aware that employers can terminate the arrangement in certain circumstances before or after it has started if:
- The arrangement is having or would have, substantial adverse effect on the business; or
- An employer has reasonable grounds to believe that the arrangement is not used for its designated purpose.
If considering terminating the arrangement, employers must serve a notice proposing termination of the arrangement, which must set out reasons for termination and specify the date the employee must return to their original work schedule. An employee must also be given 7 days to make representations to the employer which must then be considered before deciding whether to terminate the arrangement.
It is of vital importance that, when considering termination of flexible working arrangements, the reasons for termination are objective, fair and reasonable.
Can an employee bring a claim?
A breach under the Act can be referred to the Workplace Relations Commission (WRC) or the Labour Court on appeal. However, it should be noted that neither the WRC nor the Labour Court on appeal, have the legal powers to look at the merits of the dispute. They can only assess whether the process, which led to the employer’s decision, was fair and objective. If successful in their claim, an employee may be awarded compensation of up to 20 weeks remuneration and/or the employer may be directed to comply with the Act.
Remote Working
What is Remote Working and who can avail of it?
While the Right to Request Flexible Working is designed for employees with caring responsibilities, the right to request remote work applies to all employees, irrespective of their family status.
‘Remote Work’ is described as an arrangement whereby some of 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.
The Process
Employees must have at least 6 months continuous service with the employer before their request can be considered. The request must be made in writing and submitted no later than 8 weeks before the proposed start date. The request must include specific details as set out in the Code, such as the number of remote days per week and reasons for requesting the arrangement.
The request for Remote Work must be dealt with as soon as it is practicable and no later than 4 weeks after receiving the request. Employer must consider their business needs as well as the employee’s needs before approving or declining the request. In circumstances where more time is required to assess the request, employers can extend this timeframe to 8 weeks.
When assessing whether the role is suitable for Remote Work, employers must consider the request in an objective, fair and reasonable manner. The Code helpfully sets out a list of matters and questions which may be of guidance when assessing the requests, although it should be noted that the list is not exhaustive.
Employers must within 4 weeks of the receipt of the request either, or 8 weeks if this timeframe is extended:
- Approve the request;
- Refuse the request and provide reasons for the refusal; or
- Provide notice in writing informing the employee that more time is required to assess their request.
If the request is approved, it must be appended to the existing Contract of Employment with a copy retained by both the employer and employee.
Any changes to the arrangement may be agreed in writing between the employer and the employee and can include:
- A postponement of the arrangement;
- Curtailing the request; or
- Varying the request.
In situations where employers cannot approve the request, it is encouraged that where feasible, an alternative arrangement is considered.
Employees should be aware that employers can terminate the arrangement in certain circumstances, before or after the arrangement has begun if the employer believes that:
- The arrangement is having or would have, substantial adverse effect on the business; or
- An employer has reasonable grounds to believe that an employee is not fulfilling all of the requirements of their role.
Employers must consider their own business needs as well as the employee’s needs before terminating the arrangement. If an employer wishes to proceed with terminating the arrangement, they must provide an employee with reasons for terminating the arrangement as well as afford them time to make representations in relation to the proposal. If the arrangement is terminated, employees are required to return to their original working arrangements 7 days after being served with the notice of termination.
At all times employers should be considering legal and/or contractual obligations owed by either party before deciding whether the arrangement should be approved or refused.
Can an employee bring a claim?
It is encouraged that, where possible, issues regarding remote work are resolved at an internal level. However, where that is not possible, employees can lodge a claim in the WRC. The WRC or the Labour Court on appeal, does not have the legal powers to assess the merits of the decision and can only review the process, which led to the employer making its decision. If successful in their claim, employees can be awarded compensation not exceeding 4 weeks remuneration to be paid by the employer.
Record Keeping
In both cases, it is important that employers are aware of the requirement to keep a record of any arrangement that is put in place for a period of 3 years. Failure to retain records may lead to a summary conviction to a fine of up to €2,500.
Conclusion
It remains to be seen how these arrangements will work in practice now that the right to request flexible and remote work has become a statutory right. Since Covid-19 many workplaces have in place flexible and remote working arrangement but for those that don’t the employer will have to engage with staff and to give real consideration as to why a hybrid model does not work in the circumstances and to prepare a policy.
For any employers with Flexible/Remote Working Arrangements policy already in place, it would be advisable to check and assess how their policy compares with the newly published Code of Practice and amend the policy where necessary.
For more information on this topic please contact Anne Lyne or any member of our employment law team.
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About the Author
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Anne Lyne
Anne is a partner in the Employment team at Hayes solicitors. She has considerable experience advising and representing employers and employees on all aspects of the employment relationship from pre-employment matters to termination.