Ireland: Right to Request Remote Working Arrangements and Flexible Working Arrangements for Caring Purposes Come Into Force Following the Publication of the Long-Awaited Code of Practice

The Right to Request Remote Working (“RW”)

Any employee can request RW from their first day at a new job, but they must have 6 months’ continuous employment before an approved arrangement can start. An employee must submit their request for RW to their employer as soon as it is reasonably practicable but not later than 8 weeks before the proposed starting date.

The request for RW must include certain information to help the employer with the decision-making process, including the details of the RW arrangement i.e. how many days, the days being requested, the proposed start and end date of the arrangement, if relevant, and the reasons for requesting RW.

The Code gives examples of reasons for requesting RW, which include reducing the daily commute and carbon footprint, optimising quality of life outside normal working hours, personal or domestic circumstances, neurodiversity or special medical needs or circumstances which could favour a quiet working environment or facilities not always available in the office.

The request must also include details of the proposed RW location and information on the suitability of the proposed location.

An employer who receives a request for RW must consider the request, noting the business needs, the employee’s needs, and the requirements of the Code in relation to considering a request in an objective, fair and reasonable manner.  It is also recommended that employers consider the suitability of the role for RW and the employee’s suitability to work remotely.

In considering if a role is suitable for RW, the employer can consider a broad range of issues as set out in the Code.

If having considered the matter, the employer decides that it is not in a position to approve the requested arrangement, the Code recommends trying to accommodate some type of alternative arrangement where it is possible. However, where there is no other feasible arrangement, an employer must inform the employee that it is not approving the RW arrangement with the Code being considered and outline the reasons why.

Within 4 weeks of the RW request, the employer must either:

• approve the request and provide an agreement outlining the details of the arrangement;
• refuse the request outlining the reasons why; or
• provide notice that more time is needed to consider the request along with the length of the extension.

There is also provision for the termination of the RW arrangement by the employer in certain circumstances, where the employer is satisfied that the RW would have or is having a substantial adverse impact on the operation of the business.

 

The Right to Request Flexible Working (“FW”)

The Right to Request Flexible Working was also introduced under the Code. FW is a working arrangement where an employee’s working hours or working patterns are adjusted.  This can be done through remote working arrangements, flexible working arrangements or reduced working hours.  Common types of FW include part-time working, term-time working, job-sharing, flexitime, compressed working hours or working part of the week remotely.

Unlike the right to request RW, the right to request FW does not extend to every employee.  In order to make a statutory request for FW under the Act, an employee must be:

• the parent or acting in loco parentis to a child under 12 years of age;
• the parent or acting in loco parentis to a child or under 16 years if the child has a disability or illness and who is or will be providing care to the child; or
• providing or going to provide personal care or support to a specified person namely 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. In this case, the person must also need significant care or support for a serious medical reason.

Such an employee can request FW from their first day at a new job, but they must have 6 months continuous employment before an approved arrangement can start.  An employee must submit their request for FW to their employer as soon as is reasonably practicable but not later than 8 weeks before the proposed starting date.

As with an FW request, an employee must receive a response to the request within 4 weeks to either approve or refuse the request, with reasons, or extend the time for consideration of the request. Similarly, there is provision for the termination of the FW arrangement in certain circumstances.

It is worth noting that there seems to be no restriction on the number of times that an employee can make an RW or FW request to their employer. Therefore, it appears that employees will be able to make a subsequent request immediately upon being refused an RW or FW arrangement.

 

Penalisation and Complaints

The Act provides that an employer must not penalise an employee for proposing to or having exercised their rights to make a request for RW or FW or a request to return to a previous working arrangement.

A specific breach of the Act may be referred to the WRC within 6 months of the date of the breach or 12 months where an Adjudication Officer (“AO”) of the WRC is satisfied that the failure to refer the complaint within the initial 6-month period was due to reasonable cause.

Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to a refusal to grant FW or RW. They can only look at the process which led to the employer’s decision.

The AO or the Labour Court on appeal may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding 20 weeks’ remuneration to be paid by the employer in the case of FW and award compensation to the employee, not exceeding 4 weeks’ remuneration to be paid by the employer in the case of RW.

Notwithstanding the fact that the WRC cannot consider the merits of any refusal, an employee could start an internal grievance in respect of the refusal or alternatively could go straight to the WRC where there is a failure to follow the process.

Employers should be mindful of going through the process required by the Code to avoid any successful WRC complaints.