The eagerly anticipated Code of Practice for Employers and Employees on the Right to Request Flexible Working and Remote Working (the Code) was published on 7 March 2024, bringing the rights to request flexible and remote working finally into effect. The right to request flexible and remote working are contained in the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act). The purpose of this article is to highlight the key updates in the Code, over and above the requirements set out in the Act.

What’s new?

Flexible working

The Code makes clear that flexible working may include remote working, flexible working schedules, or reduced working hours. The Code sets out the request process to be followed and encourages relevant employees to include supporting details, such as a birth certificate in respect of a child, with their application.

In respect of early termination by the employer where there is a ‘substantial adverse effect’ on the business, the Code provides that an employer should consider if their reasons for terminating the arrangement are objective, fair and reasonable. The grounds for the decision should be set out in a clear manner and the employer should consider any representations from the employee in an objective, fair and reasonable manner.

In terms of raising a concern, internal resolution is encouraged e.g., by way of the grievance procedure. The Code suggests that larger organisations could designate a member of the HR team to be the point of contact for flexible working issues.

Remote working

A particular feature of a remote working request is that it needs to contain information on the suitability of the proposed location. The Code outlines the areas in which information must be included, where relevant, such as the suitability of the workstation, the distance of the proposed remote workplace to the employer’s place of business; compliance with privacy, data protection; health and safety; and adequate and secure internet connectivity. From a health and safety perspective, employers should ensure compliance with the Health and Safety Authority’s guidance and checklist.

When considering a remote working request, the Code outlines that an employer may consider both (i) the suitability of the role and (ii) the suitability of the employee in an objective, fair and reasonable manner.

In reviewing whether a role is suitable, the Code provides a list of questions, such as whether any of the duties can be undertaken remotely and whether there are technological solutions to mitigate issues arising from remote working. In terms of the suitability of the employee, the Code provides some very useful guidance. Questions to consider include:

• Does the employee have the necessary IT skills?
• Do they require minimal supervision?
• Have they met the performance standards and requirements of the role?
• Are they involved in an ongoing disciplinary process or is there a live record of disciplinary action?
• Does the employee understand the need to demonstrate flexibility when required to attend on-site outside of their agreed arrangement in order to meet business needs?
• Does the employee need to be on-site to collaborate with colleagues in a team environment in a face-to-face setting?

The questions in the Code around the suitability of the employee are helpful and reinforce considerations many employers will already have had in mind when considering requests up until now.

As with the right to request flexible working arrangements, in circumstances of early termination by the employer where there is a ‘substantial adverse effect’ on the business, the Code provides that an employer should consider if their reasons for terminating the arrangement are objective, fair and reasonable. The grounds for the decision should be set out in a clear manner and the employer should consider any representations from the employee in an objective, fair and reasonable manner.  Where an employee requests early termination of a remote working arrangement, the Code states that the employer should consider any legal obligations owed by either party. This could be, for example, obligations under health and safety law.

Similarly, internal resolution is encouraged for raising concerns and the Code suggests that larger organisations could designate a member of the HR team to be the point of contact for remote working issues.

Key takeaways for implementation

While a breach of the Code is not an offense per se, adherence to the Code will be taken into account by the WRC (or Labour Court) in the event of a claim in respect of a breach of the Act. This means that in the areas where the employer must have regard to the Code, it is important that employers can demonstrate they have had regard to the best practice guidance contained in the Code. There are many considerations that go into operating a successful system for managing requests for flexible and remote working and the guidance in the Code is useful in this regard.

Work-life balance policy

While acknowledging that workplaces differ and there is no standard policy when it comes to work-life balance (flexible and remote working), the Code contains guidance on matters to include in such a policy. A lot of employers will already have flexible and remote working policies in place. These should now be reviewed to ensure they are in line with the requirements of the Act and take account of the guidance in the Code.

Considering a request

Importantly, the Code suggests the policy outlines that requests for flexible or remote working will be agreed on a case-by-case basis and agreeing to or refusing one request will not set a precedent or create a right for another employee. This is a very useful provision in a policy. However, it is vital that employers bear in mind the nine discriminatory grounds e.g. gender, family status, age etc. in the Employment Equality Acts when considering requests and take steps to avoid any direct or indirect discrimination in the way requests are handled.

Trial period

Other noteworthy aspects in the Code include that the policy may build in a trial period in respect of remote/flexible working arrangements. We expect many employers considering more permanent flexible or remote working requests will insist on a trial period first to ensure that the arrangement works in practice.

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