The Introduction of Flexible Working & Right to Request Remote Working & Code of Practice on Handling Requests for Flexible & Remote Working
We write further to our ongoing updates in respect of the implementation of the outstanding aspects of the Work Life Balance Act and Miscellaneous Provisions Act 2023. On Thursday 7th March 2024, Minister for Enterprise Trade and Employment, Simon Coveney TD confirmed that the eagerly awaited final instalments of the Work Life Balance and Miscellaneous Provisions Act 2023 (i.e. the right to request flexible working and the right to request remote working) were introduced. On the same date, Minister Coveney, also confirmed that, in consultation with Minister O’Gorman, he had also approved and published the WRC Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working.
Minister Coveney stated:
“I am pleased to announce that the right to request remote working arrangements is now available to all employees. Remote working became a new norm for many employers and employees in the wake of Covid-19 and it is clear it is here to stay. This Government committed to facilitating and supporting remote working, to reduce our time commuting and to enable families to spend more time together.
The approval and publication of the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working will support employees to avail of their rights and employers to operate under the Act.”
The Right to Request Flexible Working
The right to request Flexible Working applies to parents of children under 12 year of age (16 if the child as a disability) and those with caring responsibilities. Although an employee can make a request from day 1 of employment, the arrangement cannot commence until the employee has 6-month’s service. The right to request flexible working for parents and carers transposes Article 9 of the EU Work Life Balance Directive. Ireland has now fully transposed the Directive.
All employees will have the right to request remote working but there is no obligation to approve this request.
The Right to Request Remote Working
As with Flexible Working requests, employees can make a Remote Working request from their first day of employment but must have 6 month’s employment before any arrangement starts. Any request must be made at least 8 weeks before the date the employee wants to start the proposed arrangement. Employers must respond to the request within 4 weeks of receiving it, with the option to extend by a further 4 weeks if required.
The Code of Practice
The Code of Practice was developed by the Workplace Relations Commission (WRC), in consultation with trade unions and employer representative bodies. Employers Federation provided a response to the consultation on behalf of our members. The Code provides guidance to employers on how to manage a request and what factors they should consider when deciding whether to grant the request or not. It is not an offence to fail to follow the Code, but a failure to do so is admissible in evidence before the WRC in any employment rights claim.
The Code provides guidance on how to handle a range of situations which may arise when considering a request as well as those that may occur when a request has been granted. Very helpfully, the Code also includes templates documents and guidance on implementing a work life balance policy.
The Code stipulates the time frame that Employers must comply with when considering request for Flexible Working or Remote Working is within 4 weeks of receiving the request, with the option to extend by a further 4 weeks if required.
When responding to the request for Flexible Working or Remote Working , the 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;
- Provide notice in writing informing the employee that the request has been refused and the reasons for the refusal, or;
- Provide notice in writing informing the employee that more time is needed to assess the request and set out the length of the extension.
Employers and employees are obliged to have regard to the Code when considering applications for remote working arrangements. Employers must also have regard to the Code if terminating a flexible working arrangement. Employees will be able to refer a dispute to the WRC where an employer fails to fulfil their obligations under the Act and the Code will be admissible in evidence in proceedings before a court, the Labour Court or the WRC.
Where a complaint is made about the right to request Remote Working or Flexible Working, the Code confirms that the WRC will not consider the merits of any application but rather the process that the employer has followed, or failed to follow, when reaching its decision.
The maximum award for a breach of the right to request Remote Working is 4 weeks’ pay and for a breach of the right to request Flexible Working is 20 weeks’ pay. Employers must keep specific records of Remote Working and Flexible Working arrangements taken by employees for up to 3 years or risk a fine of up to €2,500.
We will carefully consider the contents of the Code, including the specimen documentation, before finalising our specimen Flexible Working Policy.