We are a small company with less than 20 employees. In the past we have facilitated employees working remotely on a discretionary basis. We understand that the legislation establishing a right to request remote work has now been implemented. How should we handle this?

The Law

The Work Life Balance and Miscellaneous Provisions Bill 2022 was signed into law on 4 April 2023. It remains unclear when the legislation will come into force. The Bill provides that a Code of Practice will be issued by the WRC which will provide additional guidance to both employers and employees in relation to both the right to request remote work and the factors to be considered when addressing that request. Given the continued focus on this issue we would be hopeful that the bill will be signed into law and the Code of Practice drafted by the WRC in short term.

The Bill entitles employees with more than six months continuous service to request remote working arrangements. Employees have been defined widely under the Bill as “ a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a part-time employee and a fixed-term employee”. Employment will be deemed to be continuous if there has been a break of 26 weeks between two periods of service with the same employer.

Remote work is defined as when “some or all of work ….. provided at a location other than the employers place of work without change to the employees ordinary working hours or duties” .

The Bill requires employees to make a request in writing which must be signed. The request must be made within 8 weeks of the proposed commencement date or “as soon as reasonably practicable” andmust include the following details:

• details of remote working arrangement
• proposed commencement date
• proposed expiration date, where applicable

Having regard to the Code of Practice the employee must also set out the following:

• the reasons why he or she is requesting remote working (“the employee’s needs”) and;
• details of the proposed remote working location and;
• information as may be specified in the Code of Practice on the suitability of the proposed remote working location

The employer must consider the following factors in determining whether to approve or refuse the request:

• his/her wishes
• employee needs
• requirements of Code of Practice

It is open to the employer to request such further information “as the employer may reasonably require” in order to consider the request. The employer must respond to the employee within four weeks, which can be extended by a further eight weeks. The employer has the option to either approve or refuse the request. All responses must be in writing. If the employer approves the request, they must set out the details of the arrangement, start date and expiration date in their response. The arrangement should be recorded in writing. If the employer chooses to refuse the request, they must set out the reasons in writing when responding to the employee.

The Bill allows the employee to withdraw the request in advance of an agreement being signed. The Bill also provides for variation of the arrangement by agreement between the parties, early return to the previous working arrangement by agreement and termination by the employer for adverse effect or abuse of the arrangement. The Bill also provides protection to employees against penalisation.

It is open to the employee to lodge a WRC claim against the employer for failure to comply with their obligations under the Bill. Itis important to remember thatWRC cannot consider any decision made by employer (for example, to refuse a request) just a failure to comply with procedural obligations, for example a failure to request the request within the required time frame. The WRC can award compensation of 4 weeks remuneration  and/or make a direction to the employer to comply with a procedural requirement.

Employers are obliged to retain records of request remote work for three years and may be liable to a fine of €2,500 on foot of a summary conviction for failure to retain those records.

Employers should be aware that the Bill introduces a right to request flexible work for caring purposes. Flexible working is defined as a“working arrangement where an employees working hours or patterns are adjusted including remote working arrangements, flexible working schedules or reduced working hours”. As such, this right incorporates the right to work remotely. If an employee requests remote work for caring purposes as defined in the Bill, the employer will be subject to the minimum obligations set out in the Bill and the Code of Practice in addressing those requests. Given that the right to request remote work impacts all employees but that the right to request flexible work only impacts a smaller cohort of employees, employers may want to address these rights separately in their policies.

We have no policy governing the right to request remote work in place. What do we do ?

This is a good opportunity for employers with no policy in place to take the following steps:

• Consider the viability of remote working for their organisation generally
• Assess the viability of remote working for various categories of employees
• Determine which model (hybrid/remote) might best suit their needs
• Consider the extent to which remote work can be facilitated.
• Decide whether they will be providing equipment for employees working remotely
• Determine what, if any, technology may need to be required to facilitate a hybrid/remote working model, for example, dual authentication for security purposes

We would recommend these employers to consider these issues before preparing a draft policy which comply with the minimum requirements se out in the Bill. This draft policy can be finalised when Code of Practice is to hand.

We have a hybrid/remote working policy in place. What do we do ?

Employers who currently operate a policy which addresses right to request remote work will need to ensure that that policy meets the minimum obligations set out in the Bill. These employers will also need to address right to request flexible work for caring purposes in their policies. Employers must ensure the following minimum requirements are mirrored in their policy:

• Timelines for requests and responses
• Criteria which must be included in the request
• Factors to be considered in making a determination.

This list may need to be updated to once the Code of Practice issues. Employers will also need to address issues such as withdrawal, early return, termination and protection against penalisation in their policies.These employers should familiarise themselves with the requirements set out in the Bill, in the knowledge that they will not be in a position to fully update and roll out their policy until the Code of Practice issues.

Practical Considerations

• It is important for employers to remember that there is no right to remote work merely a right to request remote work.
• The Bill as drafted seems to focus on balancing the rights of the employer and the employee and providing transparency to employees in relation to requests made.
• As the Bill places new obligations on employers to retain records of these requests it will be important for employers to establish a system or process to retain those records. This will be particularly important for employers who have not offered some form of formal right to request remote work to date.
• As hybrid/remote working evolves we are seeing employers focus on specific elements of their remote/hybrid working arrangement, in particular, the place of work. As different levels of risk arise depending on whether an employee works from home, from outside their home or from a different jurisdiction we are seeing employers setting specific parameters as to where remote work can be completed.

Legal Island Training Resources for Your Staff

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