What you need to know – statutory right to request remote working and flexible working arrangements

Introduction

Following the introduction of the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act), the Workplace Relations Commission (WRC) has recently published the long-awaited Code of Practice on the Right to Request Remote and Flexible Working. This Code can be accessed here.

The Code sets out practical guidance for employers and employees in relation to the steps that need to be taken when making or considering such requests.  While the Act became law back in April 2023, this right is only recently commenced, on foot of publication of the Code.

What sometimes anecdotally referred to interchangeably, the specific statutory concepts of Remote Working and Flexible Working are different.

Remote Working

Remote Working is an arrangement where some or all of the work ordinarily carried out at an employer’s place of business is conducted elsewhere, without change to the employee’s ordinary working hours or duties.

An employee can request a remote working arrangement from their first day of working with their employer, but they must complete a minimum of 6 month's continuous employment with that employer before any such approved arrangement can start.

All requests for remote working arrangements must be made in writing and at least 8 weeks before the proposed starting date.

A remote working request must contain various details, such as, how many days and which days are being requested to work remotely, the proposed starting and end date of the arrangement and the reasons for requesting a remote working arrangement.

Having submitted a request for remote working, an employer can require the employee to submit any additional information that may reasonably be required.

Once a request for remote working is received by an employer, it will have 4 weeks to respond to the request. If an employer experiences difficulty assessing the viability of the request, they can extend the 4-week period for a further period, not exceeding 8 weeks.

An employer who receives a request for remote working must consider the request, having regard to:

• their own needs, i.e. the needs of the business; and
• the employee’s needs, i.e. the reasons why the employee is requesting the remote working; and
• the requirements of the Code in relation to considering a request.

In responding to the request, an employer must either:

• approve the request and this approval must include an agreement prepared and signed by the employer and employee setting out the details of the agreed arrangement, the start and end date, if any, of the arrangement; or
• refuse the request by written notice informing the employee that the request has been refused and the reasons for the refusal.

The Code states that in a situation where an employer cannot approve the remote working arrangement sought by an employee in their request, the parties should consider an alternative arrangement, where this is feasible.

If approval is provided, an employer may terminate any approved remote working arrangement in certain circumstances, before or after it has started if it is satisfied that the arrangement would have, or is having, a substantial adverse effect on the operation of the business. There are certain notice requirements that would need to be adhered to if doing this.

Flexible Working

Flexible working is different to Remote Working and is an arrangement where an employee's working hours or working patterns are adjusted. This can include part-time work, term-time work, job-sharing, flexitime, compressed working hours and remote working itself. However, the statutory right to request a flexible working arrangement will only apply to employees when that working arrangement is necessary for caring purposes.

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

• The parent/guardian of a child under 12 (or under 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 (the employee’s child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person who lives in the same household as the employee). That person must need significant care or support for a serious medical reason.

Again, an employee can request a flexible working arrangement from their first day at a new job, but they must complete a minimum of 6 month's continuous employment with their employer before an approved arrangement can start.

Same as with remote working requests, there are certain laid down time periods / requirements in the Act for responding to such requests.

An employer who receives a request for flexible working must consider the request, having regard to:

• their own needs, i.e. the needs of the business; and
• the employee’s needs, i.e. the reasons why the employee is requesting the flexible working.

In responding to the request, an employer must either:

• approve the request and include an agreement prepared and signed by the employer and employee which sets out the details of the agreed arrangement, the start date and duration, of the arrangement, or
• refuse the request by written notice informing the employee that the request has been refused and the reasons for the refusal.

Same as with remote working requests, an employer can terminate an approved flexible working arrangement in certain circumstances, before or after it has started if the employer is satisfied that the flexible working arrangement would have, or is having, a substantial adverse effect on the operation of their business. There are certain notice requirements that would need to be adhered to if doing this.

Record Keeping

The Act specifies the records which employers must retain on remote and flexible working requests.

An employer must keep a record of approved arrangements taken by their employees.

The record must be kept for three years and must include:

• the period of employment of each employee; and
• the dates on which each employee was on an approved arrangement; and
• the number of times each employee was on an approved arrangement.

All notices, or copies of notices, given or received must also be retained by the employer and employee for one year.

An employer who fails to retain records is liable on summary conviction to a fine of up to €2,500, although prosecutions in such situations are likely to be relatively rare.

Impact on Employers

It is important for employees and employers to note that this legislation does not provide employees with a right to work remotely or flexibly. As indicated above, if an employer has a valid basis to refuse such requests, it may still do so. Under the Act, neither the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to such requests. This means that they cannot look behind the merits of the decision.

However, if an employer fails to comply with the process relating to responding to such requests, an employee may then bring a claim to the WRC for non-compliance with the Act and the Code in that respect.

Should a claim succeed for remote working requests, the WRC or the Labour Court, on appeal, may direct the employer to comply with the legislation and/or may make an award of compensation to the employee of up to 4 week's remuneration.

For claims relating to flexible working requests, the WRC or the Labour Court, on appeal, may direct the employer to comply with the legislation and/or may award compensation to the employee of up to 20 week's remuneration.

While many employers will already have remote / flexible working arrangements in place, formally or informally, the initial indications are that some employers are now receiving formal statutory requests following the commencement of this statutory right. This will, at a minimum, impose an administrative burden on such employers and it is important to get the process right.

Our advice is that employers should ensure that requests for remote and flexible working are considered and are responded to in compliance with the Act and that this is done in an objective, fair and reasonable manner. Employers may also need to review and, if necessary, update their written remote and flexible working policies already in place.

Greta Siskauskaite, Barry Walsh and Andrew Murphy

This document is for general guidance only and not intended as professional advice. Advice should always be taken before acting on any of the issues identified.