On 8 March 2024, International Women's Day, Ireland went to the polls to vote in two referendums on changing the wording on family and care in the Constitution (both were defeated). The day before Ireland went to the polls, there was a notable legislative development in this space – with the coming into force of the statutory right to request flexible working (FW) for parents and carers and the statutory right to request remote working (RW) for all employees (under the Work Life Balance and Miscellaneous Provisions Act 2023). It is important to note that employees do not have a right under the new legislation to challenge the substantive refusal of a request, but rather, only the failure to follow the prescriptive process in considering such requests, outlined in detail below.

The Workplace Relations Commission (WRC), or the Labour Court on appeal, may direct an employer to comply with the prescriptive process or award compensation, in the case of FW requests, not exceeding 20 weeks' remuneration and, in the case of RW requests, not exceeding four weeks' remuneration.

However, employers should be mindful of the direct/indirect discrimination risks (in particular, gender, family and disability) in refusing such requests (with greater financial exposure) and ensure that there are clear objective reasons for refusal.

The new rights to request FW and RW will have less relevance to employers who already have developed policies offering RW and FW across the workforce, arising from the Covid pandemic. In some sectors, the war on talent has prompted employers to offer employees greater flexibility in how and where they work as an aid to recruitment and retention. Some employers have embraced FW and RW in appropriate cases to increase female participation and assist in reducing the gender pay gap.

However, we are seeing many employers keen to tip the balance after Covid towards working from the office – to assist, amongst other things, with greater collaboration, integration and learning. It is in this space that the right to request may have more traction.

Employers should now review their FW and RW policies and ensure that systems are in place to deal with the new statutory requests.

UK comparison

Employers operating in the UK will be familiar with the statutory right to request FW (which may include a request for RW). The right is not restricted to parents and carers as in Ireland, but in Ireland all employees have the separate right to request RW. Similar to the Irish legislation, it is only a right to request and not a substantive right to FW. In the UK, this right is currently restricted to those with 26 weeks' continuous service, although in April 2024 this should become a day one right as in Ireland (although in Ireland an employee will need to wait six months from commencement of employment for any agreed arrangement to be put in place). UK employers have three months to reply (expected to reduce to two months shortly), as opposed to the much shorter period of four weeks in Ireland. UK refusals must fall within one of eight statutory prescribed grounds, which do not apply in Ireland. In the UK, maximum compensation is eight weeks' pay (each week capped at the statutory rate), as opposed to four weeks' remuneration for RW requests or 20 weeks' remuneration for FW requests in Ireland.

WRC Code of Practice

On 7 March 2024, the WRC published a Code of Practice (the Code) giving guidance on best practice in considering the new statutory FW and RW requests. Non-compliance with the Code is admissible in evidence in the WRC, Labour Court or other court proceedings. Helpfully, the Code provides template application forms and a template Work/Life Balance policy.

We have outlined below the detailed prescriptive process which should be followed in dealing with the new statutory requests, taking into account the new legislation and best practice as set out in the Code.

What is FW and RW?

FW is a working arrangement where an employee's working hours or working patterns are adjusted. It can include part-time work, term-time work, job-sharing, flexitime, compressed working hours and RW.

RW is an arrangement where some or all of the work is carried out at a location other than at the employer's place of business without change to the employee's ordinary working hours or duties.

Who can make a request?

To make a statutory request for FW, an employee must be:

• the parent or acting in loco parentis to a child under 12 years of age or under 16 years if the child has a disability or illness and who is or will be providing care to the child; or
• providing or will provide personal care or support to a specified person, namely the employee's child, spouse or civil partner, cohabitant, parent or grandparent, sibling or a person other than one in the categories already specified who lives in the same household as the employee. The person must also be in need of significant care or support for a serious medical reason.

Unlike FW, all employees have the right to make a statutory request for RW.

Although an employee can request FW or RW from the start of employment, they must complete a minimum of six months' continuous employment before any arrangement can start.

What must be submitted on making a request?

An employee must submit a request for FW or RW, in writing and signed (or, as provided in the Code, online) as soon as is reasonably practicable but not later than eight weeks before the proposed start date.

A FW request must specify the form of FW being requested, the proposed start date and proposed duration of the arrangement, and the grounds for the request (whether the eligibility requirements for parents/carers are satisfied).

A RW request must specify details of the RW arrangement (i.e. how many days and which days requested), the proposed start date and end date (if applicable) and, having regard to the Code, the reasons for the request, details of the proposed work location and its suitability.

An employer can ask an employee for any additional information that they may reasonably require (data protection obligations will need to be carefully considered given relevant sensitive personal data).

Regarding RW requests, the Code provides that the employee should set out how they can continue to perform their role remotely to the required standard and their individual specific reasons for making the request. Examples set out in the Code include reducing the daily commute and carbon footprint, optimising quality of life outside normal working hours, personal or domestic circumstances, neurodiversity or special medical needs, or circumstances which could favour a quiet working environment or facilities not always available in the office. On suitability of RW, the Code sets out a number of matters – essentially, suitably equipped workstation with adequate privacy, availability of relevant equipment and technology, adequate and secure internet connection, agreeable distance from the employer's on-site place of work, commitment to ensuring that company data and intellectual property are secure and protected, and agreement to comply with health and safety obligations, a risk assessment, compliance with policies (not limited to data protection, data security, confidentiality, IT, social media, email, protection of intellectual property policies) and to make no subsequent substantive changes to the workstation without authorisation.

When does the employer need to reply?

The employer must respond to a FW or RW request as soon as reasonably practicable, but not later than four weeks after receiving the request.

The employer must either approve the request (with an agreement signed by the employer and employee setting out 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. Alternatively, the employer can provide notice in writing informing the employee that more time is needed to assess the viability of the request and set out the length of the extension (not exceeding eight weeks).

In a situation where an employer cannot approve the RW arrangement, the parties should consider an alternative arrangement, where this is feasible.

What must an employer consider?

An employer must consider the FW or RW request, having regard to the employer's needs, the employee's needs and requirement of the Code.

For a RW request, an employer may consider both the suitability of the role for RW as well as the employee's suitability to RW.

In reviewing whether a role is suitable for RW, the Code provides that the following questions could be considered by an employer: What type of work does the role entail? What are the employee's key duties? Can any of the duties which make up the role be undertaken remotely? Does the role require a high degree of manual work? Does the role include tasks that must be performed or are more efficiently performed on-site? Does the role require access to equipment/technologies or data that are only available on-site? Does the role require face-to-face engagement with clients, customers or other employees on-site or at other locations? Would RW affect the service quality or organisational operations taking into account the number of employees currently on approved leave and/or on approved RW or FW arrangements? Are there technological solutions to mitigate issues arising from RW? Do any health and safety issues arise if activities are undertaken remotely?

In reviewing the suitability of the employee to RW, the Code provides that the following questions may be considered by an employer: Does the employee have the necessary IT skills to complete their required job functions outside the office? Does the employee understand their role and require minimal supervision to complete their tasks? Has the employee met the performance standards and requirements of the role? Is the employee subject to an extended probation period? Is the employee subject to an active performance improvement plan? Is the employee involved in an ongoing disciplinary process or is there a live record of disciplinary action? Is the employee subject to a training programme or apprenticeship which requires supervision? Has the employee demonstrated an ability to meet deadlines or any other business requirements? Does the employee understand the need to demonstrate flexibility when required to attend on-site outside their agreed arrangement in order to meet business needs? Does the employee understand that there may be a requirement to participate in team meetings/training/one-to-ones online while working remotely? Has the employee maintained a satisfactory attendance record and complied with the company's attendance policy? Does the employee need to be on-site for learning, development or mentoring purposes? Does the employee need to be on-site to collaborate with colleagues in a team environment in a face-to-face setting.

The Code provides that employers should consider requests in an objective, fair and reasonable manner.

Can an employer terminate a FW or RW arrangement after it has been entered into?

Yes. An employer can terminate an approved arrangement, if the employer is satisfied that the FW or RW arrangement would have, or is having, a substantial adverse effect on the operation of their business, profession or occupation by reason of:

• seasonal variations in the volume of the work concerned;
• the unavailability of a person to carry out the duties of the employee in the employment (or, for RW, in the employer's place of business);
• the nature of the duties of the employee in the employment or, for FW, the number of employees in the employment;
• for FW, the number of employees in the employment;
• for FW, the number of employees in the employment whose periods, or parts of whose periods, of an approved FW arrangement will fall within the period specified in the employee's approved FW arrangement; or
• any other matters relevant to the substantial adverse effect on the operation of the employer's business, profession or occupation.

In such circumstances, the employer can give the employee written notice of termination, having considered the needs of the employer and the employee's needs and the requirements of the Code. The notice must set out the reasons for termination and specify the date on which the employee must return to their original working arrangement.

This date must not be earlier than four weeks from the date of receipt of the notice of termination unless the date the approved FW arrangement comes to an end is less than four weeks from the date of receipt of the notice.

An employer must notify the employee in writing of the proposal to terminate the arrangement, include details of the grounds for termination, give the employee seven days after receipt of the notice to make representations and consider any representations made before deciding whether to give notice of termination. When considering termination, an employer should consider whether the reasons for termination are objective, fair and reasonable. The parties should consider whether any alternative arrangement may be feasible.

If an employer has reasonable grounds for believing that the FW arrangement is not being used for the purpose for which it was approved, or an employee is not discharging all of their duties while RW, they can give an employee written notice of termination setting out the reasons for the termination and specifying the date on which the employee must return to their original working arrangement. An employer who proposes to give notice of termination on these grounds must notify the employee in writing of the proposal to terminate (including details of the grounds for termination), give the employee seven days after receipt of the notice to make representations and consider any representations made before deciding whether to give notice of termination. An employee is required to return to their original working arrangement seven days after receiving notice of termination.

Can an employee request to return to their original working arrangements earlier?

Yes. An employee can request, by written notice, to return to their original working arrangements earlier than had been approved by providing reasons and a proposed date of return. An employer must consider and give notice in writing as soon as reasonably practicable but not later than within four weeks of receipt as to whether the request has been approved or refused and the reasons for any refusal. When considering the request, the employer must have regard to the needs of the employer, the employee's needs and the requirements of the Code.

On the expiration of the arrangement, the employee is entitled to return to the original working arrangement held immediately before approval.

Penalisation

An employer must not penalise an employee for proposing to or having exercised their right to make a request for FW or RW, or a request to return to a previous working arrangement.

The employer's grievance procedure can be used to raise concerns about the process.

Claims and compensation

As above, it is important to note that employees do not have a right under the new legislation to challenge the substantive refusal of a request, but rather, only the failure to follow the prescriptive process in considering such requests. Any such claim must be made within six months (extended to 12 months if reasonable cause) of the date of the alleged breach.

The WRC, or the Labour Court on appeal, may direct an employer to comply with the process or award compensation for failure to follow process, in the case of FW requests, not exceeding 20 weeks' remuneration and, in the case of RW requests, not exceeding four weeks' remuneration.

Record-keeping

An employer must keep a record of approved FW and RW 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.