The Workplace Relations Commission ("WRC") in Ireland published the long-awaited Code of Practice (the "Code") on the Right to Request Flexible Working and the Right to Request Remote Working on 7 March 2024. These rights had been introduced by the Work Life Balance Miscellaneous Provisions Act 2023 but could not become fully operational until the Code issued.

Eligibility

All employees can make a request for remote work from day one of employment, but must complete six months continuous employment before an arrangement can commence. The position is the same for those requesting flexible work, but they must also fall under the definition of a caregiver which includes parents to a child under 12 (or under 16 where providing care for a disability or illness) or an employee providing personal care to a specified person (defined in the legislation) living in the same household, needing significant care.

Making and Processing Request

The Code sets out how an employee should make their request, the information that should be included and the factors that an employer should consider when making a decision. All decisions and arrangements should be recorded in writing attaching reasoning for decisions. All requests, decisions and agreed written arrangements should be retained by employers for three years. In considering the request, the employer should take account of business needs and the employee's needs as set out in their request. The Code attaches a non-exhaustive list of questions that should be considered by the employer in assessing both the appropriateness of the role and the individual when reviewing remote working requests. Those questions can also be used to assess requests for flexible work. All decisions must be objective, reasonable and fair and should issue in writing to the employee within four weeks. An employer can seek an additional four weeks to assess the request, but this extension must be notified within the initial four-week period.

Ending or Changing the Arrangement

An employer can terminate the arrangement on two grounds - if they have reasonable grounds to suspect abuse of an arrangement, or if the arrangement is having a substantial adverse impact on their business (factors listed in the legislation). The employer, prior to issuing a  notice of termination, must notify the employee in writing of the proposal to terminate and setout the reasons for termination. On receipt of the proposal to terminate, the employee can make written representations. The employer must consider the employee's representations before making a final determination. If the employer decides to terminate the arrangement, the employee must return to their original working arrangement on the date specified in the notice, or, in cases of termination on grounds of abuse, seven days after receiving the notice.

The parties can agree to vary, postpone or reduce the period of the arrangement by agreement. It is also open to an employee to make a written request for an early return to their original working arrangements providing reasons. The employer must consider this request and give notice as to whether that request has been approved or refused, with reasons for refusal, within four weeks. For flexible working arrangements that have not yet commenced, if the employee becomes ill or incapacitated and is unable to undertake the care, they may postpone the arrangement until they have recovered.

Appealing a Decision

If an employee believes that their request has not been considered in line with the Code or legislation, they can lodge a grievance with their employer. Should the issue remain unresolved, the employee can refer the matter to the WRC within 6 months of the date of the alleged breach. The WRC cannot assess the merits of any decision made by an employer, only the process that led to the employer's decision, for example a failure to process a request for remote work within the four-week deadline.

The maximum award that can be made are four weeks' pay (remote working request) and twenty weeks' (flexible working request).

The Code also prohibits employers from penalising employees for exercising their rights under the legislation or the Code.

Take Aways for Employers

• Employees do not have the right to remote work or flexible work, merely the right to request.
• The right to request remote or flexible work is a day one right.
• All employers should ensure that they have a policy and process in place to address these requests.
• Employers with an existing policy should review that policy to ensure it meets the minimum obligations required under the Code and the legislation.
• Employers must ensure that they meet the minimum obligations in respect of processing the requests, in particular, the four-week deadline.
• A system for recording these arrangements should be established to avoid fines for non-compliance.