Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working

On 6 March, entitlements to request flexible working and remote working came into effect. On the same day, the Workplace Relations Commission (WRC) Code of Practicefor Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working was published.

The Code can be accessed here: 

https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-employees-right-to-request-flexible-working-and-right-to-request-remote-working/code-of-practice-for-employers-and-employees.pdf

The Workplace Relations Commission Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Workingcontains clear guidance and practical explanation of the obligations and entitlements in relation to these arrangements.

Background to the entitlements and the Code of Practice 

The Work Life Balance and Miscellaneous Provisions Act 2023 transposed the EU Work-life Balance Directive (Directive (EU) 2019/1158.) The Directive was due to be transposed by August 2022.  The Act introduced important changes, including:

• the entitlement to request flexible working (commenced on 6 March 2024).
• the entitlement to request remote working (commenced on 6 March 2024).
• up to five days unpaid leave where for “serious medical reasons” the employee needs to give personal care or support to a family member or person who lives in the same household as the employee (commenced 3 July 2023).
• an extension of the application of the maternity protection legislation to transgender males who become pregnant (commenced 3 July 2023).
• an increase in the entitlement to paid time off work for employees for the purpose of breastfeeding (commenced 3 July 2023).
• domestic violence leave (commenced 27 November 2023).

Under Part 4 of the Act, the Department of Enterprise, Trade and Employment had directed the WRC to prepare a Code of Practice for the purpose of practical guidance to employers, employees and others on the steps that may be taken for complying with the provisions.  The WRC received and fully considered, as noted in the Code, over 50 submissions as part of the consultation process in the development of the Code. In finalising the Code, the WRC engaged with representatives of representatives of the Irish Business and Employers Confederation (IBEC) and the Irish Congress for Trade Unions (ICTU).

On 6 March, the Department of Enterprise, Trade and Employment declared it as an approved Code of Practice for the purposes of the provisions in relation to the right to request flexible working and the right to request remote working arrangements (SI 92 of 2024).

The right to request flexible working arrangements

The Work Life Balance and Miscellaneous Provisions Act 2023 introduced the right to request a flexible working arrangement for caring purposes, by inserting a new Part IIA into the Parental Leave Act 1998.  

Entitlement to request flexible working

Under the Act, to be entitled to request flexible working, an employee must be:

• the parent, adoptive parent or adopting parent or acting in loco parentis to a child under 12 or under 16, if the child has a disability or long-term illness, for the purpose of providing the care to the child, or
• providing or will be providing personal care or support to a person, namely the employee’s child, spouse or civil partner, cohabitant, parent or grandparent, brother or sister, for the purpose of providing such care or support to that person.  The person must be in need of significant care or support for a serious medical reason.  

An employee’s flexible working arrangement cannot start until the employee has completed 6 months continuous employment.  Breaks in employment – periods when an employee is not an employee of the employer – of less than 26 weeks will not break that calculation period for continuous employment.  The Code notes that an employee can request flexible working from their first day at a new job, but cannot start the arrangement until they have completed 6 months continuous employment. 

The Act contains provisions in relation to submitting a request for flexible working, the right to a response to such a request, the employer’s obligations in relation to considering the request, changes to a flexible working arrangement, termination of a flexible working arrangement, return to the previous working arrangement, abuse of a flexible working arrangement, and protection of employees from penalisation.  These provisions are usefully and clearly summarised in the Code

The Code also notes:

• practical examples of flexible working, e.g, part-time work, term-time work, job-sharing, flexi-time, compressed working hours, and remote working.
• that in considering termination of a flexible working arrangement, an employer should consider whether their reasons for terminating are “objective, fair and reasonable.”  The Code outlines in clear terms how the decision can be assessed and reached in an objective, fair and reasonable manner.

Resolving issues regarding requests for flexible working arrangements

The Code notes that “situations may arise where an employee feels that the FW (flexible working) request has not been considered in line with the legislation and/or with this Code of Practice.”  The Code states in relation to this:

• employers and employees should 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 discrete HR units could consider designating a member of the HR team to be the point of contact for FW issues.
• if an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be used.
• a breach of the Act may be referred to the WRC at any stage.  If the matter is addressed through the company grievance procedure and remains unresolved on completion, the employee can refer it to the WRC citing the Code. 

The right to request remote working arrangements

Part 3 of the Work Life Balance and Miscellaneous Provisions Act 2023 provides entitlements in relation to requests for remote working arrangements.

Entitlement to request remote working

Under the Act, a “remote working arrangement” means an arrangement whereby some or all of the work ordinarily carried out by an employee at the employer’s place of business is provided at a location other than at the employer’s place of business without change to the employer’s ordinary working hours or duties. 

All employees have the right to request remote working arrangements but the remote working arrangement cannot start until the employee has completed 6 months continuous employment.  Breaks in employment – periods when an employee is not an employee of the employer – of less than 26 weeks will not break that calculation period for continuous employment.  The Code notes that an employee can request remote working from their first day at a new job, but cannot start the arrangement until they have completed 6 months continuous employment. 

The Act contains provisions in relation to submitting a request for remote working, the right to a response to such a request, the employer’s obligations in relation to considering the request, changes to a remote working arrangement, termination of a remote working arrangement, return to the previous working arrangement, abuse of a remote working arrangement, and protection of employees from penalisation.  These provisions are also usefully and clearly summarised in the Code.

The Code also contains practical guidance:

• for employees on making requests for remote working including:
  • examples of reasons for requesting remote working, e.g. reducing the daily commute and carbon foot-print, optimising quality of life outside normal working hours, personal or domestic circumstances, neurodiversity or special medical circumstances.
  • information which should be included, where relevant, as to the suitability of the proposed remote working location e.g. the workstation suitability and distance from the workplace.
• for employers on how to carry out an assessment of the request, and how to decide on termination of a remote working arrangement in an “objective, fair and reasonable manner”. The Code contains clear and useful detail on this.

Resolving issues regarding requests for remote working arrangements

The Code notes that “situations may arise where an employee feels that the RW (remote working) request has not been considered in line with the legislation and/or with this Code of Practice.”  The Code states in relation to this:

• employers and employees should 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 discrete HR units could consider designating a member of the HR team to be the point of contact for FW issues.
• If an informal process has not been successful in resolving the issue, then the formal company grievance procedure may be used.
• A breach of the Act may be referred to the WRC at any stage.  If the matter is addressed through the company grievance procedure and remains unresolved on completion, the employee can refer it to the WRC citing the Code. 

Redress in relation to flexible working and remote working arrangements

An employee can bring a claim to the WRC of breach of the employer’s obligation to consider a request for flexible or remote working. The claim must be referred within 6 months of the breach.  The WRC may extend that 6 months to 12 months where there is reasonable cause for the delay.  

The WRC, and Labour Court on appeal, cannot assess the merits of the employer’s decision, rather the process for such decisions, in adjudicating on claims in relation to the employer’s decision on a request for flexible or remote working, termination of such arrangements and requests to return to previous working arrangements.  

The WRC, or Labour Court on appeal may direct the employer to comply with specific sections of the Act and/or award compensation of up to 20 weeks’ remuneration.  

Requirement to keep records

An employer must keep a record of approved flexible working arrangements for three years.  An employer who fails to do so is liable on summary conviction to a fine of up to €2,500. An employer and employee must also keep all notices, or copies of notices, in relation to the arrangements, given or received by them for one year.

Effect of Code

Nothing in the Code of Practice prevents an employer adopting more favourable entitlements in relation to flexible working than those contained in the Act.  Failure to follow the Code is not an offence. However, the Work Life Balance and Miscellaneous Provisions Act 2023 and the Workplace Relations Act 2015 provide that in any proceedings before a Court, the Labour Court or an Adjudication Officer of the WRC, a Code of Practice shall be admissible in evidence.  

Templates

The Code contains very useful templates of a Work-Life Balance Policy, request for flexible working arrangements and request for remote working arrangements.

This update is provided for information purposes only and is not legal or other advice.