The Right to Request Flexible or Remote Work – Everything You Need to Know

With these developments, many organisations will have to either review their existing work life balance policies in place to align them with the Code or will have to develop and implement a robust policy that will cover or exceed best practices covered by the Code.

Flexible Working

Flexible Working defines a working arrangement where an employee’s working hours or working patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours. The Code comprehensively includes different types of flexible working, such as part-time work, term-time work, job-sharing, flexitime, compressed working hours, and remote working to provide guidance for employers and provide employees with the flexibility they need to balance work and personal life commitments effectively.

Employees will have the right to make a statutory request for a flexible working arrangement only for caring purposes of their child under 12 years of age (16 years of age in cases of a child with a disability or illness) or caring responsibilities for a specified person in need of significant care or support for a serious medical reason.

Remote Working

Remote Working entails a situation where employees conduct some or all of their work, as typically performed at the employer’s premises under the terms of their employment contract, from a different location, without any changes to their regular working hours or responsibilities.

The organisation should (where possible due to the business needs) recognise different types of remote working arrangements to accommodate the diverse needs of their employees, such as:

• Working from home/another location as the primary location
• Dividing work responsibilities between home/another location and the office,
• Maintaining the office as the primary workplace with occasional remote work opportunities,
• Utilising hub working arrangements.

Application for an Arrangement for both flexible and remote work

To initiate a statutory request for both flexible and remote work, an employee must complete a minimum of 6 months of continuous employment with their employer before an approved arrangement can commence. As stated in the Code, the employee can request such arrangement from their first day of employment, but the arrangement itself cannot start before the six-month service period has passed.

The process of making a flexible or remote working request is identical when looking at the timelines for making or responding to a request. Employees must submit a request in writing, not later than 8 weeks before the proposed start date of the arrangement. When requesting a flexible working arrangements the submitted request needs to clearly state the form of the arrangement the start date and the duration of the arrangement. Additional information and evidence, such as medical or birth certificate may be needed to support the application. When requesting a flexible working arrangements the submitted request needs to clearly state details of the remote working arrangement, the proposed starting and end date (if applicable) of the arrangement and the reasons for requesting remote working.

The organisation should consider the request in an objective, fair and reasonable manner having regard to business needs, the needs of an employee and the requirements of the Code. The request must be responded to in writing not later than 4 weeks after receiving it, or in exceptional circumstances when the organisation has difficulties in assessing the request the timeline can be prolonged for a further 8 weeks. The request can either be approved and the details of the arrangement put in writing for signing; it can be refused with clear reasons set out for refusal; or the organisation can request additional time to assess the viability of the application. In a situation where the organisation cannot approve the flexible or remote working arrangement sought by an employee in their request, an alternative arrangement should be considered where feasible.

With requests for remote working, the employer may consider both the suitability of the role for remote work (i.e. what type of work does the role entail; does it require face-to-face engagement with clients or customers, etc.) as well as the employee’s suitability to work remotely and it is important that both are reviewed in an objective, fair and reasonable manner. When assessing an employee’s suitability, the employer can consider factors such as; is the employee meeting performance standards, does the employee have a live record of disciplinary action, or 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 amongst others.

Termination of the Arrangement

The organisation has the right to terminate an approved flexible or remote working arrangement in certain circumstances, before or after it has started if the arrangement would have or is having a substantial adverse effect on the operation of the business, such as:

• seasonal variations in the volume of the work concerned
• the unavailability of a person to carry out the duties of the employee in the employer’s place of business
• the nature of the duties of the employee in the employment
• the number of employees in the employment
• the number of employees in the place of business whose periods of approved flexible working arrangement overlap in whole or in part with the period specified in the employee’s flexible working arrangement
• any other matters relevant to the substantial adverse effect on the operation of the employer’s business, profession or occupation.

In such circumstances, the notice must set out the reasons for termination and specify the date on which the employee must return to their original working arrangement. This date must not be earlier than 4 weeks from the date of receipt of the notice of termination (unless in cases where the end date of the arrangement is less than 4 weeks from the date of receipt of notice).

An employer who proposes to give notice of termination must first:

1. Notify the employee in writing of the proposal to terminate the arrangement,
2. Include clear details of the grounds for terminating the arrangement,
3. Give the employee 7 days after receipt of the notice to make representations to the employer in relation to the proposal,
4. Consider any representations made by an employee before deciding whether to give notice of termination.

If an employer decides to proceed with terminating the arrangement, the employee must return to their original working arrangement on the date stated in the notice.

The same procedure is to be followed in cases of abuse of a flexible or remote working arrangement where the employee is not using the approved arrangement for the purpose for which it was approved. In such cases an employee is required to return to their original working arrangement 7 days after receiving notice of termination for abuse of an arrangement.

Return to Previous Arrangement

An employee has the option to formally request an earlier return to their initial working arrangements by submitting a written request, accompanied by reasons and a suggested return date. Upon receipt of this request, the employer is obliged to review and respond within a 4-week period, indicating whether the request is approved or denied, along with the rationale for any refusal. When evaluating the request, the employer must again consider both their own business requirements and the employee’s needs.

Should the employer approve an early return, they may propose an alternative date for the transition back to the original working arrangement. Furthermore, upon the conclusion of an employee’s flexible or remote working arrangement, they are entitled to revert to the initial working conditions held prior to the approval of the arrangement.

Raising Concerns about Flexible or Remote Work

An employer must not penalise an employee for proposing to or having exercised their rights to make a request for flexible or remote or a request to return to a previous working arrangement.

The WRC encourages employers and employees to try to resolve any issues at local level. Where there is a collective agreement between a trade union and an employer, the parties should refer to those terms for raising grievances. Larger organisations with HR units could consider designating a member of the HR team to be the point of contact for flexible and remote working issues.

If an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be utilised. If the matter is addressed through the company grievance procedure and remains unresolved on completion, the employee has the right to refer it to the WRC, citing this Code and submitting it within 6 months of the date of the breach (this can be extended to twelve months where there is reasonable cause).

Interestingly, the Code sets out that under the Act, neither an Adjudication Officer nor the Labour Court has the authority to evaluate the merits of any decision made by an employer in relation to a flexible or remote working application. This implies that they are not permitted to scrutinise the rationale behind the employer’s decision, they are only entitled to look at the process and procedural aspects that lead to the employer’s decision.

Keeping Records of Approved Flexible or Remote Working Arrangements

Every employer must keep a record of approved flexible or remote working arrangements taken by their employees. An employer who fails to retain records is liable on summary conviction to a fine of up to €2,500. The record must be kept for three years and must include the period of employment of each employee, 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 by an employer or employee must also be retained by the employer and employee for one year.

Conclusion

Overall, the Code of Practice on the Right to Request Flexible and Remote Working represents a significant step towards a more inclusive and adaptable workplace environment. The Code sets out clear guidelines for managing employee’s requests and it is up to employers to consider each request and reasonably accommodate the diverse needs of their employees to promote their satisfaction and overall well-being.

If you need assistance updating or developing and implementing a new Work Life Balance Policy into your handbooks or company policies and procedures, get in touch with us today.

This article was written by Mislav Magas, HR Consultant at Action HR Services

DISCLAIMER:
The information in this article is provided as part of the Action HR Services Blog. Specific queries should be directed to a member of the Action HR Services Team and it is recommended that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct on 22nd February 2024.