knowledge 20 March 2024 |

Rights to request remote and flexible working for caring purposes now in operation

With effect from 7 March 2024, the rights to request remote work and to request flexible work for caring purposes contained within the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”) have come into effect. 

The WRC has also published its long-awaited Code of Practice (the “Code”) on these rights, setting out how employers are expected to manage requests and the matters which should be considered when doing so. Failure to adhere to the requirements of the Code is not actionable per se, although it may be admissible in evidence in any proceedings before a Court, the Labour Court or an Adjudication Officer of the WRC in an employment rights claim.

The focus of the legislation, and the Code, is on ensuring that an employer responds to requests within a prescribed timeframe, and follows a set process which takes into account all relevant considerations. There is no scope for a tribunal or court to second-guess the merits of an employer’s substantive determination of a request for remote working or a request for flexible working for caring purposes under the Act. Recourse to the WRC for failure to follow these procedures is limited (and is expected to follow an internal grievance process only). Nonetheless, failure to do so can give rise to directions by the WRC to properly deal with a request, or to an order of compensation as is considered “just and equitable having regard to all the circumstances” but not exceeding four weeks’ remuneration (in the case of remote work) or twenty weeks’ remuneration (in the case of flexible working). 

Dealing with requests in accordance with the Code is likely to improve an employer’s defence of any other claim arising from the request, such as a discrimination claim (perhaps on gender or family status grounds, and in which there is greater scope to substantively dispute the reasons for the refusal of the request) and indeed such claims are not uncommon in England where similar provisions have been in force for some time. As such, a consistent approach to requests which reflects the requirements of the Code advisable. Employers should also be cautious not to penalise employees who make requests. 

Remote working requests

As with requests for flexible working for caring purposes, requests: 

• may be made from the first day of employment although employees must have six months’ employment before any arrangement commences;
• must be made at least 8 weeks before the date the employee proposes to start the working arrangement; and
• must be in writing and signed by the employee - an online application can be completed.

As well as giving particulars of the days sought to be worked remotely, and the start and end dates (if applicable), employees are also required to set out the reasons for the requests, and details of their proposed work location and its suitability (including in terms of distance to an employer’s workplace, privacy, data and confidentiality considerations, and internet connectivity). The Code recommends that employees outline how they expect to continue to perform their role to the requisite standard. 

Employers have four weeks (which may be extended by a further four weeks ) to respond to the request, and can either approve the request (in which case an agreement should be signed by the parties) or refuse the request, giving reasons. Where a request is to be refused, employers are expected to consider what alternative arrangements might be feasible. Arrangements are subject to termination where an employee is not meeting the requirements of their role while working remotely.

The Act obliges employers to consider such a request, having regard to the needs of both the employer and the employee, as well as the requirements of the Code. The Code expects employers to consider requests in “an objective, fair and reasonable manner” and sets out that an employer can consider the suitability of both the role and of the individual employee in doing so.

In assessing the suitability of the role, an employer should consider such matters as the need to access on site equipment, the need to perform tasks on site, any requirement for face-to-face engagement with clients, customers and employees, any impact of the arrangement on service-quality (and whether these might be mitigated by technological solutions), as well as health and safety issues. Clearly not all of these will be relevant in each case, and other factors will be relevant in particular roles.

In assessing the suitability of an employee for remote work, an employer can take into account the employee’s technical skills, the level of supervision they require, any extended probation period, attendance records, any ongoing performance improvement process, disciplinary process or live disciplinary action, whether the employee has demonstrated an ability to meet deadlines/business requirements, and any appreciation from the employee of the need for flexibility regarding on-site attendance outside of any arrangement for business needs. The Code also refers to where an employee “needs to be on-site to collaborate with colleagues in a team environment in a face-to-face setting”. 

Another factor of which employers should be aware when considering remote or flexible working requests is that such arrangements may be terminated where there is “a substantial adverse effect on the operation of the business”, provided a prescribed process is followed. Arrangements may be subject to amendment with the agreement of the parties.

Flexible working requests

Flexible working may be requested by employees who either are a parent of a child under twelve (or sixteen, where the child has a disability or illness), or will be providing personal care or support to a person that is in a degree of relationship to the employee that the Act recognises. Those persons include a spouse or civil partner, a cohabitant, a parent, a grandparent, a sibling and any person with whom the employee lives in the same household, where they are in need of significant care or support for a serious medical condition. The arrangement may be terminated where an employer has reasonable grounds for believing that the arrangement is not being used for the caring purpose intended.

Employees must make a request in writing stating what form of flexible working is being sought, the timeframe of same, and the grounds for requesting it. Employers might request supporting documentation, subject to data privacy considerations, and must respond within four weeks (extendable by a further four weeks) to either approve or refuse the request, giving reasons. The Code does not set out the matters employers must consider, although refers to the guidance for considering requests to work remotely.

Record-keeping

Employers must keep a record of approved flexible working and remote working arrangements. 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 such arrangement. All notices, or copies of notices (by employer or employee), must be retained for one year.

Concluding remarks

Employers should ensure their internal policies and procedures reflect the requirements of the Code, even where arrangements currently exist regarding requests for flexible or remote working, noting that the new laws apply only to requests for remote working (whether from home or elsewhere), or flexible working for caring purposes. The timelines concerned are, for instance, shorter than those applicable in the UK. 

The Code does not directly consider the position of an employee who successfully worked entirely from home during or after the pandemic but whose employer seeks to return them to the office. A recent case in the UK (Wilson v Financial Conduct Authority) is helpful, however, in that the Employment Tribunal found it legitimate for the wider business context (including the need for in person collaboration, provision of training or coaching) to be taken into account when refusing such a request on the grounds that the arrangement would have a detrimental impact on performance or quality of output, notwithstanding that the role had previously been performed successfully on a remote basis.