The eagerly awaited Code of Practice regarding a right to request a remote working arrangement and a right to request a flexible working arrangement for caring purposes was published on 7 March 2024.  The Code has now mobilised provisions of the Work Life Balance and Miscellaneous Provisions Act 2023 (the 2023 Act) which was signed into law in April 2023.

Equality

Increasing the participation of women, and employees with disabilities in the labour market are the main objectives of the EU Directive that was transposed into Irish law by the 2023 Act and the Code reflects those principles.  If a dispute arises and proceedings issue, the Code may be relied upon in evidence in such circumstances, so it is important that the parties observe its provisions.

There is a higher preference amongst women than men to work remotely, according to a survey carried out last year.  Three times more women than men are working part-time according to the 2022 Census.  The rising costs of childcare has been cited as a key contributing factor to this.

The disability employment gap in Ireland is one of the largest in Europe.  Only around one-third of persons aged between 15-64 with disabilities have a job. There are an estimated 400,000 disabled people in Ireland who are currently available for work.

When making a request in writing to his/her employer for a remote working arrangement at least eight weeks before it's proposed to commence, the employee is required to give reasons for making the request.  The 2023 Act refers the employee to the Code of Practice when listing such reasons.  The Code lists 'personal or domestic circumstances' and 'neurodiversity or special medical needs' as examples of an unlimited list of reasons that could be communicated to an employer who then has a maximum of four weeks (or twelve weeks if the validity of the request needs to be assessed further) to approve or refuse the request.  The employer is required to be objective, fair and reasonable when considering a request.  The Code requires the parties to consider an alternative arrangement if the employer cannot approve a request for a remote working arrangement.

Therefore, if an employee needs to work remotely for reasons relating to childcare for instance, but the request is refused by the employer, that employee may propose as an alternative arrangement one or more of the other types of flexible working arrangements described in the Code such as flexitime or compressed working hours.  Subject to how the proposal is presented, employers may need to treat it as a request for a flexible working arrangement and follow the prescribed steps which reflect, for the most part, the procedures in place for making and considering a request for a remote working arrangement.  The Code and the 2023 Act allow an aggrieved employee to submit a complaint to the Workplace Relations Commission if it is alleged that the employer has not complied with the legislation.  When investigating such a complaint, the WRC may only assess the process followed by the employer when deciding upon a request as opposed to the merits of that decision.

When considering a request, the 2023 Act requires the employer to have regard for their own need, the employee's needs, and the relevant issues set out in the Code of Practice, one of which asks if any health and safety issues could arise if part of the role is performed remotely.  An employee with a disability may use this reference in the Code to argue that facilities or equipment available in the remote working location, that are absent from the workplace, enables the employee to be sufficiently capable and competent to undertake his/her duties.

Compliance with the Safety Health and Welfare at Work Act, 2005

When making a request for a remote working arrangement, the Code obliges the employee to incorporate into the written request an agreement to comply with his/her obligations under the Safety Health and Welfare at Work Act, 2005 (2005 Act) and to facilitate the employer in complying with its duties under that Act.   Employees may make a request to work remotely on the day the employee commences employment, but the remote working arrangement may not begin until the employee has accrued at least six months service.  As stated, the employer has four weeks from the date of receiving the request to either approve or refuse the request.  It can extend this timeframe to twelve weeks if it needs more time to validate the request.  Whether the employer acquires this extra time by virtue of the fact that the employee has not yet attained six months of service or through extending the period to twelve weeks, the employer is likely to need more than four weeks to ensure it will comply with its obligations under the 2005 Act.

The Health and Safety Authority (HSA) published useful guidelines in 2020 entitled 'Occupational Safety and Health Guidance on Remote Working' to assist employers in preparing for a remote working arrangement.  The guidelines remind employers of their obligations under the 2005 Act.  Employers need to undertake some form of a risk assessment to identify the hazards in the place where the employee proposes to work remotely and to produce a safety statement on the back of that assessment setting out those hazards and how the employer intends to address them.  The employer would be exposing itself to too much risk if it approved the request to work remotely without complying with its obligations under the 2005 Act.  The penalties are severe, and the Act gives the Court jurisdiction to sentence an offending employer to a prison sentence of up to 3 years and a maximum penalty of €3m if convicted in the Circuit Court.

The HSA has not published guidelines in relation to preparing a remote working location for an employee with a disability because as the HSA stated in its guidelines published in 2021 titled 'Employees with Disabilities', it's the decision of the employee whether to disclose a disability or not.  Assuming the disability is disclosed to the employer, it would be prudent of an employer to arrange for an occupational health practitioner to carry out a needs assessment to understand the duties the employee carries out and any difficulties their disability presents in completing these duties.

Written agreement of Remote Working Arrangement

The Code alerts employers to their obligation under the Terms of Employment (Information) Act, 1994, as amended, to notify an employee of any change to their terms and conditions of employment no later than the date on which the change takes effect.  The 2023 Act provides for the execution of a written agreement between the parties if a request for this type of arrangement is approved.  This could be an opportunity for employers to minimize its exposure to liability by incorporating into the written agreement any arrangements that have been made during the risk assessment.  For example:

• the work equipment provided, agreement by the employee to use the equipment properly and to alert the employer immediately about any potential risks;
• any training that is to be provided;
• the location of the workspace and agreement by the employee to only use that particular workspace;
• to notify the employer immediately about any connectivity issues to give the employer a chance to fix the issue without the need for the employee to switch location of the agreed workspace; or
• it could provide for the employee's main workspace and an alternative workspace if there are problems with broadband.

The agreement should also list out the duties which the employee is required to perform whilst working remotely because the employer is entitled under the 2023 Act to bring the remote working arrangement to an end if it has reasonable grounds for believing that the employee is not discharging all their duties in accordance with the remote working agreement.

Appeal from a decision to terminate the arrangement.

The 2023 Act sets out several grounds on which an employer may terminate a remote working arrangement and a flexible working arrangement for caring purposes.  In the context of remote working, each of those grounds may be applied against any arrangement that was in place before the 2023 Act was introduced.  Employers are required to notify the employee in writing in advance of terminating the arrangement of its intention to do so.    Employees are given 7 days from receipt of the notification to respond to the proposed termination.  That response should be sent to the employer and the employer will then decide whether to reverse its initial decision or not.

It was hoped that the Code would regulate this stage further by ensuring a fair and impartial process which is one of the stated objectives of the Code.  Unfortunately, the Code has not addressed this and there is a risk that an employer may fail to consider a response from an employee to a notice of termination in an impartial manner.  The response could be construed as an appeal from the employer's decision to terminate an arrangement and to oblige the employee to return to the workplace.

It remains to be seen but we could see affected and disgruntled employees challenging the termination of a remote or flexible working arrangement on the basis that it violates the principle of natural justice and is also in breach of the principle of "nemo judex in sua causa" (no one should be a judge in their own cause) for an employer to consider and decide upon a response or appeal from its decision to terminate that arrangement. The larger enterprises could impartially exercise the termination process where there are personnel available from different divisions within the organisation to make decisions at the relevant stages.  This impartiality may be questioned where smaller employers are required to address an arrangement and, for various reasons, the only person within the organisation who is available to consider such a response or appeal from the employee is the same person who decided to terminate the arrangement in the first instance.

Similarities in provisions

The following chart (click HERE to make it larger/download and print) illustrates the similarities between the provisions under the 2023 Act and the Code in relation to both types of arrangement:

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