Irish Region

Following a public consultation which concluded in June 2023, the Workplace Relations Commission (WRC) has published a Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working (Code).

The Code sets out guidance for both employers and employees in achieving compliance with the requirements of the Work Life Balance and Miscellaneous Provisions Act 2023 (2023 Act), and the Parental Leave Acts 1998 to 2023, in handling requests for flexible and remote working arrangements.

Flexible Working

Part 2 of the 2023 Act provides that an employee may request a flexible working arrangement to enable them to provide care to a care recipient for a set period. A care recipient may include a child, spouse, civil partner, cohabitant or certain other relatives, where that person is in need of significant care or support for a serious medical reason.

The 2023 Act defines “flexible working arrangements” as a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours. The Code builds on this definition to now include part-time work, term-time work, job sharing, flexitime, compressed working hours and remote working.

Remote Working

Part 3 of the 2023 Act provides employees with a right to request a remote working arrangement. The Code defines remote working as “an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties”.

The Code

Flexible and remote working arrangements may only commence after an employee has completed at least six months continuous service with their employer. However, the Code makes it clear that an employee can submit their request for flexible or remote working arrangements from the day they commence employment.

Key takeaways include:

• A request for flexible or remote working must be submitted no later than eight weeks before the proposed start date. Requests must be made in writing, including via an online request form, and signed by the employee. Template request forms for both flexible working arrangements and remote working arrangements are provided in the Code.
• The Code sets out information which must be included in a request for flexible or remote working. Employees are encouraged to share as much detail as possible concerning their request.
• Employers are generally required to respond within four weeks of receiving a request for flexible or remote working.
• Employers and employees may agree to make an amendment to or terminate a flexible or remote arrangement after it has been agreed. The Code sets out factors which should be taken into account when making such a decision.
• The Code sets out considerations which an employer may take into account when considering whether a role and an employee are suitable for remote working. This includes the type of work done by the employee, whether the role requires face-to-face engagement with clients, the employee’s IT skills and the level of supervision required by the employee.
• Where an agreement on remote working is reached between an employer and employee, this should be appended to the employee’s contract of employment.
• In considering a flexible working request, employers should take into account their own needs, the employee’s needs and the guidance set out in the Code.
• The Code provides a template Work Life Balance Policy which can be used to assist employers in developing a policy for their organisation.

Employers are required to keep records of any approved flexible working arrangements and remote working arrangements in place in their organisation. Failure to retain required records will leave an employer open to a fine of up to €2,500 on summary conviction.

Employers should be aware that a breach of the 2023 Act may be referred to the WRC, citing the Code. A breach of the 2023 Act must be referred to the WRC within six months of its occurrence, this period may be extended to 12 months for reasonable cause. The WRC may direct an employer to comply with specific sections of the 2023 Act and/or make an award of up to four weeks’ remuneration to the employee as compensation for a breach of the employer’s obligations in relation to requests for remote working arrangements or up to 20 weeks’ remuneration for a breach of the employer’s obligations in relation to requests for flexible working arrangements.