The Right to Request Remote or Flexible Working
By Maggie Kelleher Byrne:
Flexible / Remote Working Requests
The right to request remote or flexible working, introduced by the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”), has been brought into effect as of 7 March 2024. The Workplace Relations Commission has also published a Code of Practice (the “Code”) to advise employers and employees in relation to how requests for flexible and remote working arrangements are made and handled.
Definitions
Flexible working is defined as “a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours.” In practice flexible working may amount to 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.”
A key difference between remote and flexible working is that any employee may apply for remote working, but only an employee with caring responsibilities may apply for flexible working. Section 13B of the Act specifies that a candidate for flexible working must be providing care to either
- A child under 12 years of age, or under 16 years of age where the child has a disability or illness
- A spouse, civil partner, parent, grandparent, sibling, or other cohabitant; as long as they are in need of significant care or support for a serious medical reason.
To consider the application for flexible working the employer may request additional documentation from the candidate, such as details of the caring relationship, a birth certificate or other proof of relationship, a medical report, or other documents to evidence the type of support required.
One potential cause of confusion is that the definition of flexible working, as above, covers remote working too. This means that an employee with caring responsibilities may seek remote working under the umbrella of flexible working (part 13B of the Act), which differs from a remote working request (part 20 of the Act). It will be important to clarify with an employee the type of remote working application they wish to make, as the required supporting documentation and factors to consider when evaluating the application will differ accordingly.
Application process
The process for applying for either flexible or remote working will be the same:
- The right does not apply until the employee has been in employment for a period of six months. However, the employee can make an application immediately after commencing employment, to commence once the six-month period has elapsed.
- The request from the employee must be in writing and be provided at least 8 weeks ahead of the proposed start date.
- The employer must respond to the request for flexible / remote working no later than 4 weeks after receipt of the request. In the event that an employer requires more time to consider the request, they must respond within the 4-week timeline to provide notice that more time will be needed before a response is issued.
- If the request is granted, an agreement will be signed between employer and employee to set out the details of the arrangement including start date and duration (if the arrangement is of a set duration).
Each application will need to be considered individually as the impact of moving to a flexible or remote working arrangement will differ depending on the role. With regard to flexible working, the employer will have to evaluate the needs of the business in contrast to the needs of the employee in deciding whether to approve the request or not. Remote working will have to be considered on different terms, as this request will not be connected with caring responsibilities and the employee may seek this change in working arrangements for any number of reasons: simply out of preference, seeking to reduce their commute, owing to a disability, etc. The employer will have to carefully consider the request in light of the role of this employee and whether it can be effectively conducted offsite, if regular in-person meetings are required by the role, if the employee provides or receives training on-site, if manual work is a key part, etc. The employer will also have to consider the employee themselves and take into account, among other things, their performance, the level of supervision required, their likeliness to demonstrate flexibility when office attendance is required, or if they are subject to any disciplinary procedures or a performance improvement plan.
Impact
For many employers, the Act will not bring about a seismic change as the common practice within an individual organisation may already have permitted employees to enjoy flexible or remote working arrangements. Certain organisations may even go beyond the right afforded to employees by the Act e.g. by allowing its employees to work remotely from the beginning of their employment. It is important to note that the Act does not mandate that any or all employees have the automatic right to work flexibly or remotely, they merely have the right to make a request. An application by an employee may be refused by the employer, as long as reasons are given.
For now, employers should be aware of the Act and should update their internal policies or handbook immediately to reflect the obligation to consider flexible or remote working arrangements, and ensure employees are aware of this update. Ahead of the receipt of any applications under the Act, employers should draft standard applications for remote or flexible working to be made available for staff (a template is provided as part of the Code) to ensure that each application contains the same detail and can be evaluated comparatively. Once applications have been approved, employers must keep a record of these arrangements: failure to do so (under s28 of the Act) may result in a fine of up to €2,500.
The Act has included protections for employers: s13G and s25 address the potential for abuse of flexible or remote working arrangements, in which case the employer may terminate the arrangement on short notice.
Steps to take now
There is a potential for employee dissatisfaction arising on foot of a refused application for remote or flexible working. This may be addressed informally within an organisation, but in the event that the refusal is escalated to the forum of a Workplace Relations Commission (“WRC”) adjudication, an adjudication officer may direct an employer to comply with the request or to make an award of compensation up to a maximum of 20 weeks’ renumeration. This risk, however remote, is something of which employers should be aware. The WRC does not have the legal power to assess the merits of any decision, rather they can only examine the process. Accordingly it is crucial that this process is conducted thoroughly and documented throughout.
At the same time, employers are entitled to refuse these applications, or indeed to terminate or amend any arrangements put in place if they have had a substantial adverse effect on the operation of the business; however care must be taken to evaluate these applications fairly and show the decision was reasonable. To guard against any potential grievances or complaints from dissatisfied employees, employers must carefully consider requests and give detailed reasons for a refusal. It would be beneficial to go beyond the record-keeping obligations imposed by s28 of the Act and also keep detailed records of any refused requests.
Employers should also carefully consider the data protection implications of processing these applications and update their policies and procedures accordingly.
If you have questions about the impact of the Code or require assistance updating related company policies, please get in touch at mkb@ofx.ie
