Legislation: The Work Life Balance and Miscellaneous Provisions Act 2023
The WRC has recently published a code of practice for employers and employees on the right to request flexible or remote working. This code of practice has been developed after public consultation, with trade unions and employer representative bodies, like Ibec, in 2023. I want to summarize the 32 page document to help you understand what it says in simple terms.a
The above legislation sets down the right for parent’s and / or carer’s to request flexible working whilst the right to request remote working is applicable to all employees. It is also important to note that where an employee refers a dispute to the WRC claiming that their employer has not fulfilled their obligations under the Act, the code of practice will be admissible in evidence before the WRC or Labour Court.
The Code will support employers in being objective, fair and reasonable in their decision making when considering requests for flexible or remote working and it provides guidance on best practice to ensure compliance with legislation.
There are many similarities in requesting a flexible or remote working arrangement and these similarities are as follows:
- The employee must be working for the employer for at least six months before a flexible or remote working arrangement can begin
- The employee must submit the request in writing no later than eight weeks before the intention to commence the flexible or remote working arrangement and the request must include the form of flexible / remote working being requested, the proposed start date and the proposed duration of the arrangement. For a remote working request; the employee must specify how many days per week, the days being requested and the remote working location due to health and safety obligations and considerations.
- The employer must respond within four weeks of receiving the request however if they are experiencing difficulty in assessing the viability of the request, the time frame can extended to no longer than eight weeks. The employer, must however, communicate in writing to the employee after four weeks to advise them (a) if they require additional time to assess the viability (b) to advise that the proposed arrangement has been approved to include details of the arrangement for signature by both the employer and employee or (c) to advise that the proposed arrangement has been refused to include the reasons for refusal.
Specifically, in seeking a flexible working arrangement, it is important to be aware of the following:
- The employee requesting a flexible working arrangement must be the parent of child no older than 12 years of age (or 16 years of age if the child has a disability) or must be providing or intend to provide personal care or support to a specified person living in the same household as the employee and who’s in need of significant care for a serious medical reason
- The employer may seek evidence in relation to the care being provided for example: a child’s birth certificate or relationship to the specified person including a medical certificate specifying that the person is in need of significant care for a serious medical reason and signed by a medical practitioner
Specifically, in seeking a remote working request, it is important to be aware of the following:
- The employer may consider the suitability of the specific role for remote working and also, the suitability of the employee to work remotely. Considering this, there are a myriad of questions that may need to be reflected on and answered in relation to both. The employer and employee will need to have open and honest conversation(s) to discuss the implications and where it is not possible to approve a remote working request, it is encouraged that the parties explore what may be a feasible arrangement
Changes to or termination of a flexible or remote working arrangement:
It may be necessary to make changes or possibly terminate a flexible or remote working arrangement and the reasons for this may be relating to a myriad of issues which may lead to a substantial adverse effect on the operation of the employer’s business. Employers must always ensure that the grounds for making a change or terminating an agreed working arrangement are objective, fair and reasonable. An employer who proposes to give notice of termination, must notify the employee in writing of the proposal to terminate the arrangement, include details of the grounds for terminating the arrangement, giving the employee 7 days after receipt of the notice to make representations to the employer in relation to the proposal to terminate and consider any representations made by an employee before deciding whether to proceed with the termination of the agreement or not.
If the decision is made to proceed with the termination of the agreement, the employer must notify the employee, in writing, outlining the date upon which the arrangement will be terminated but this date cannot be any sooner than four weeks after the issue of the written notice to the employee.
Abuse of flexible and / or remote working arrangements:
In a situation where the employer may suspect that the flexible or remote working arrangement is not being used for it’s purpose or if the employee is not fulfilling all aspects of their role, the employer can give notice to terminate the arrangement explaining the reasons for termination and the date upon which the employee must return to their original working arrangement. As stated previously, the employer must firstly notify the employee in writing of the proposal to terminate the arrangement and specify the reasons why, the employer must give the employee seven days after receipt of the notice to make representations to the employer in relation to the proposal to terminate and they must then consider any representations in a fair, objective and reasonable way.
An employee is required to return to their original working arrangement seven days after receiving notice of termination for abuse of an arrangement.
Record keeping for both flexible and remote working arrangements:
Employers must remember to retain records of all flexible and remote working arrangements. An employer who does not retain these records may be liable for a fine up to €2500.
