The Irish Government has brought the right to request remote working arrangements for all employees into operation. What does this mean for employers and staff?
The Work Life Balance and Miscellaneous Provisions Act was enacted on 4 April 2023 and represents a significant advance in workplace entitlements for employees.
The new rules came into effect on 7 March 2024. In doing so the Government has approved and published the Code of Practice for Employers and Employees Right to Request and Right to Request Remote Working.
“Remote work needs to work for businesses and this will only happen if employers are provided with the support, training and resources they need to make this transition successfully”
Under the new rules employers and employees are obliged to have regard to a Code of Practice when considering applications for remote working arrangements.
Employers must also have regard to the code if terminating a arrangement. Employees will be able to refer a dispute to the Workplace Relations Commission (WRC) where an employer fails to fulfil their obligations under the Act and the Code will be admissible in evidence in proceedings before a court, the Labour Court or the WRC.
Defining flexible working
The new Code of Practice outlines the various types of flexible working from part-time work and job-sharing to flexitime, compressed working hours such as the 4-day week and remote working.
How to request flexible working
Under the new rules an employee can request flexible work from their first day at a new job, but first they must complete a minimum of six months continuous employment with their new employer before the new arrangement can start.
To make a statutory request for flexible work under the new rules an employee must be a parent or acting parent to a child under 12 or a child under 16 if they have a disability or illness.
Otherwise, the person must be providing care to a specific person, such as their child, spouse, civil partner, cohabitant, parent, grandparent, sibling or someone who lives in their household. As such the person must be in need of significant care or support for a serious medical reason.
An employee must submit their request for flexible working to their employer as soon as is reasonably practicable but not later than 8 weeks before the proposed starting date.
A request for flexible working must be in writing and signed by the employee. For the purpose of this Code an online application satisfies this requirement. The written or online request form must include the information set out below.
A request for flexible working for caring purposes must include the following information to help the employer with the decision-making process:
- the form of FW being requested;
- the proposed starting date; and
- proposed duration of the FW arrangement
Responsibility of the employer
Under the new rules an employer can ask an employee for any additional information that they may reasonably require about the person in need of care, employees are encouraged to include the following relevant documents and/or information with their original application so as to expedite the process:
- details of whom the request for flexible working for caring purposes is in respect of, i.e. a child or a specified person as provided for under the Act which could be a parent, spouse, civil partner, grandparent, cohabitant, brother or sister of the employee;
- in the case of a child, a copy of the child’s birth certificate or certificate of placement from a registered adoption agency or Tusla (the Child and Family Agency);
- in the case of a specified person in need of significant care or support for a serious medical reason: the employee’s relationship to the person, and
- the nature of the significant care or support, and relevant evidence of the need for significant care or support, that is;
- a medical certificate stating that the person named in the certificate is in need of significant care or support for a serious medical reason, and signed by a registered medical practitioner
Or
- in the absence of a medical certificate, such evidence the employer may reasonably require in order to show that the person concerned is in need of significant care or support for a serious medical reason.
Both employers and employees should be mindful of their obligations under the GDPR in relation to such sensitive personal data.
An employee can withdraw their request for flexible work, up to when an approved arrangement is signed by the employee and employer. Notice to withdraw a request must be in writing and signed by the employee and given to the employer.
The next steps for the employer
An employer who receives a request for FW must respond as soon as is reasonably practicable, but not later than four weeks after receiving the request. If an employer experiences difficulty assessing the viability of the request, they can extend the 4-week period for a further period not exceeding 8 weeks.
Within four weeks of receiving the request, the employer must:
- approve the request and include an agreement prepared and signed by the employer and employee which sets out the details of the agreed arrangement, the start date and duration, of the arrangement, or
- provide notice in writing informing the employee that the request has been refused and the reasons for the refusal, or
- provide notice in writing informing the employee that more time is needed to assess the request and set out the length of the extension.
When the agreement is signed by the employer and the employee, the employer must retain the agreement and provide a copy of the agreement to the employee.
Employers must consider the request “having regard to their own needs and the employee’s needs.”
The employee can exit the arrangement by providing a written notice to return to the original working arrangement.
An employer can also end the arrangement if it is having “a substantial adverse effect” on the operation of the business.
Do the flexible working rules go far enough?
Let’s face it, we’re in a time of widespread remote and hybrid working, with many firms applying their own take on this to both attract and retain staff but fundamentally operate profitably and sensibly.
The arrangements until now have been a mix of formal and informal with some organisations such as tech companies requesting a return to the office full-time or for a minimum period per week.
Grow Remote is a social enterprise on a mission to enable people to work, live and participate locally. The organisation believes that remote work can transform – and is transforming – how people work and live in Ireland.
The organisation’s communications manager Joanne Mangan said that the new legislation provides much-needed clarity for employees and employers when it comes to managing requests to work remotely. However, she says that legislation alone cannot drive the real change that is needed to build a world-class remote working ecosystem in Ireland.
“There is growing data to support the many positive social and economic benefits of remote work – but we are nowhere near to achieving the impact that remote work could have, due to systematic barriers that still exist for employers, employees and job seekers.
“We are now seeing a trend of employers defaulting back to the office as they are finding the shift to remote work too challenging. Despite data showing the positive impacts of remote work for businesses, there are many companies that remain sceptical as they have not seen the benefits that this way of working can bring. Many employers are still facing the challenges of making the transition to remote on a long term basis, particularly companies who had no experience of remote work prior to the pandemic.
“Remote work needs to work for businesses and this will only happen if employers are provided with the support, training and resources they need to make this transition successfully.
“There is a strong appetite amongst employees and job seekers for remote working options. But they are also experiencing systematic barriers that prevent them from accessing remote job opportunities. Remote jobs are still landing in cities and urban areas, but not in rural and regional communities who would benefit from them the most.
“At Grow Remote we invite employers, employees, policy makers and local communities to come together to solve the challenges that stand in the way of ensuring remote work can be the force for good that we know it can be. This legislation is an important step on the journey. But we need to take a solution-focused approach to drive the systemic change that is needed to make remote work a sustainable model in the long term. Only then will we realise the full potential that remote work offers for individuals, for businesses, and for communities across Ireland,” Mangan said.
