New WRC Code of Practice on Right to Request Remote & Flexible Working

Introduction

The long-awaited WRC Code of Practice for Employers and Employees on the Right to Request Remote and Flexible Working (“the Code”) has finally been published by the Workplace Relations Commission (“WRC”). The Code can be accessed here.

Many organisations already have in place policies and procedures around the right to request remote, flexible and hybrid working arrangements, but we were all aware that, in implementing such policies, we would need to review them as soon as the Code was published.

As set out in the Code, while failure to follow a code is not an offence in itself, both section 20(9) Workplace Relations Act, 2015 and section 31(9) of the Work Life Balance and Miscellaneous Provisions Act, 2023 provides that in any proceedings before a Court, the Labour Court or an Adjudication Officer of the WRC, a Code of Practice shall be admissible in evidence. Any provision of the Code which appears to the Court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

The focus of this Insight is to highlight the information contained in the Code which employers should now review for the purposes of ensuring that existing policies and procedures in workplaces which deal with remote/flexible and hybrid working arrangements are compliant with best practice provided for in the Code.

1. The Title of Existing Policies

The Code makes reference to employers developing what is referred to as a “Work Life Balance Policy”. Employers who already have policies in place around the right to request flexible, remote and hybrid working arrangements should consider changing the title of their policy to “Work Life Balance Policy” to bring the policies in line with the Code. This will also allow for such policies to be amended and added to over time as other work life balance initiatives are introduced.

The Code helpfully sets out a number of headings that should be considered when developing such a policy and employers should ensure that all of these headings have been addressed in existing policies. The headings are as follows:

• Introduction - The Code sets out wording around an organisation's commitment to supporting work life balance working arrangements and that wording should be reviewed and incorporated into existing policies.
• Role eligibility - Again, the code sets out wording for describing those to whom the policy applies, and that wording should be incorporated/adapted to existing policies.
  
• Employee eligibility - Policies should include suitability requirements and the Code sets out the service requirement as provided for in the legislation, whereby employees must have six months continuous employment with the employer before an approved arrangement for flexible or remote working can commence.
• Health and Safety - Employers should ensure to refer to ensuring compliance with obligations under the Safety, Health and Welfare at Work Act, 2005 and provide the link to the Health and Safety Authority’s occupational safety and health guidance on remote working.
  
• Working Arrangements - The Policy should set out the types of remote working arrangements that would be considered in the organisation, such as home being the main place of work or splitting work between home and the office or the office being the main place of work with occasional working from home or hub working. The Code also provides that employers may wish to clarify in the Policy where employees can work if working remotely, to including limits on jurisdictions or any time zone differences outside of the jurisdiction and when and where employees may be required to attend on site. The Policy should also set out any other types of flexible working arrangements that will be considered such as part time work, term time work, job sharing, flexi time and compressed working hours.
  
• Flexibility - Employers should set out that they expect employees to be flexible to meet business needs and this is specifically provided for in the Code.
• Anchor/onsite days - If an employer requires fixed days on site where employees working remotely must attend the office, these should be set out clearly in the Policy.
• Working Hours - The Code provides that the Policy should set out the working hours that apply and reference should be made to the WRC Code of Practice for Employers and Employees on the Right to Disconnect.
  
• Working Environment - The Code sets out that employers should indicate to employees whether there will be an assessment of the remote working location as regards suitability for work and the matters that will be the focus of any such assessment from a health and safety perspective.
• Set up costs and expenses - The Code provides that employers should consider what costs will arise from remote/flexible working arrangements and any specific arrangements for reimbursement to employees.
• Tax - The Code provides that the Policy should set out how remote working might affect their employees’ tax liabilities such as paying any tax relief on additional utility tax and income tax implications if working outside the country for more than 183 days.
• Jurisdiction - The Code provides that the Policy should set out the geographical/jurisdictional scope of the flexible and remote working arrangements to manage employee expectations.
• Review - The Code provides that employers may wish to put in a provision for policy review and also individual review of approved flexible and remote working arrangements, to include things like trial periods and ongoing review.
• Application forms for flexible and remote working – The Code helpfully provides a template application for flexible working and one for remote working which again employers should review and compare against existing application forms in the organisation to ensure that they comply with the Code.

2. The Application Process for Flexible and Remote Working

The Code helpfully sets out how employees should make a request for flexible or remote working and how an employer should deal with such requests. Employers must ensure that they are dealing with requests for remote and flexible working arrangements in accordance with the provisions set out in the Code in this regard.

A. How does an employee make a flexible working request?

(1.) Employees must submit their request for flexible working as soon as reasonably practicable but not later than eight weeks before the proposed starting date.

(2.) A request for flexible working must be in writing and signed by the employee – an online application can be completed and will be acceptable.

(3.) A request for flexible working must include the following information:

• The form of flexible working being requested;
• The proposed starting date; and
• The proposed duration of the working arrangement.

(4.) Employers are encouraged to include the following relevant documents and/or information with their request

• Details of to whom the request for flexible working for caring purposes relates.
• In the case of a child, a copy of the child’s birth certificate or certificate of placement for registered adoption agency or Tusla.
• In the case of another specified person under the legislation, who is not a child, who is in need of significant care or support for a serious medical reason, the employee should state the person’s relationship to the person and the nature of the significant care or support and relevant evidence of the need for that significant care or support.
• Relevant evidence such as a medical certificate or other such evidence as the employer may reasonably require in order to show that the person concerned is in need of significant care or support for a serious medical reason.

(5.) The Code sets out that both employers and employees must be mindful of their obligations under the GDPR in relation to extensive personal data. For employers, this means that you need to think about how you are going to handle such information received from employees about their flexible working arrangements and you should set out clearly in your Data Privacy Policy how that information will be retained and stored by the organisation. It is likely to be sensitive personal data and therefore additional security concerns will need to be considered from a data protection perspective.

B. How does an employee apply for a remote working arrangement?

(1.) Employees must submit their request for remote working to their employer as soon as reasonably practicable but not later than eight weeks before the proposed starting date.

(2.) A request remote working must be in writing and signed by the employee and an online application will again satisfy this requirement.

(3.) The application must include the following information:

• • Details of the remote working arrangement, i.e. how many days and which days requested; and
  • The proposed starting and end date of the arrangement, if relevant; and
  • The reason for requesting remote working.

The Code provides examples of reasons for requesting remote working which could include, but which are not limited to the following:

• • Reducing commutes and carbon footprint;
  • Optimizing 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.

(4.) The application must also include:

• Details of a proposed remote working location, (e.g home or a hub); and
• Information on the suitability of the proposed location which should include information on the following, where relevant;

• That the workstation is suitably equipped and configured to enable the employee to perform their role and duties effectively to the required standard;
• The distance of the proposed remote workplace to the employer’s onsite place of work is agreeable to the employer;
• A suitable workstation that provides adequate privacy;
• A commitment to ensuring that company data and intellectual property is secure and protected in accordance with employer policies;
• An agreement to complying with employee obligations, and to cooperating with employer obligations in ensuring compliance with the Safety, Health and Welfare at Work Act 2005;
• An agreement to a risk assessment and, if approved, to make no subsequent substantive changes to the workstation without authorisation;
• An agreement to demonstrate compliance with, but not limited to, data protection, data security, confidentiality, IT, social media, email, protection of intellectual property company policies and measures;
• The availability of relevant equipment and technology at the proposed location and agreement to ensuring that equipment is used appropriately;
• Confirmation of adequate and secure internet connection to perform the role which may need to be assessed by the company’s IT department.

(5.) If asked by the employer, the employee must submit any additional information that the employer may reasonably require in relation to the request.

(6.) Again, employers and employees are encouraged to be mindful of their responsibilities under GDPR.

3. Factors to be Considered by the Employer

The Code provides that, in considering requests for either flexible or remote working arrangements, the employer must consider the following:

• Their own needs, i.e. the business needs; and
• The employee's needs, i.e. their reasons for requesting remote working; and
• The requirements of the Code in relation to considering a request.

The Code provides that an employer should consider requests in an objective, fair and reasonable manner. The Code helpfully sets out a non-exhaustive list of matters which could be considered by the employer in considering requests as follows:

• 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 remote working affect the service quality or organisational operations considering the number of employees currently on approved leave and/or on approved remote working or flexible working arrangements?
• Are there technological solutions to mitigate issues arising from remote working?
• Do any health and safety issues arise if activities are undertaken remotely?

In considering a request for remote working, an employer may consider the suitability of the employee. The following questions may be considered by an employer. This is a non-exhaustive list and these matters may not be relevant in all situations.

• Does the employee have the necessary IT skills to complete their required job functions outside of 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 of 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?

4. How long does the employer have to respond to a request for remote or flexible working?

An employer who receives a request for flexible working or remote working arrangements must respond as soon as is reasonably practicable, but not later than four weeks after receiving the request. If the employer experiences difficulties assessing the viability of the request, they can extend that four-week period for a further period not exceeding eight weeks in total, however, it is important to note that within the first four week period, the employer must:

• Approve the request and include an agreement prepared and signed by the employer and employee setting out the details of the agreed arrangement, the start and end date, if any, of the arrangement; or
• Provide notice in writing informing the employee that the request has been refused and the reasons for the refusal; or
• Provide notice in writing informing the employee that more time is needed to assess the request and set out the length of the extension (but as outlined above, this cannot exceed eight weeks from the date of the original request).

5. Can changes be made to a remote or flexible working arrangement?

Yes, the Code provides that an employer and employee can agree, in writing, a change to a remote working or flexible working arrangement which has already been signed, before or after it has started. A change can postpone the arrangement, curtail the period of the arrangement or vary the arrangement in an agreed way.

In terms of flexible working arrangements only, if the arrangement has not yet commenced and the employee becomes ill or incapacitated and is unable to undertake the care in relation to which the flexible working arrangement is based, the employee can give notice to the employer postponing the arrangement until the employee has recovered. This notice must be in writing and be given as soon as is reasonably practicable and include a medical certificate or such evidence that the employer may reasonably require showing that the employee is unable to care for the person concerned.

6. Can a remote or flexible working arrangement be terminated?

Yes, an employer can terminate an approved remote working or flexible working arrangement in certain circumstances, before or after it has started, if the employer is satisfied that the arrangement would have, or is having, a substantial adverse effect on the operation of their business, profession or occupation because of:

• Seasonal variations in the volume of the work concerned; or
• The unavailability of a person to carry out the duties of the employee in the employer’s place of business; or
• The nature of the duties of the employee in the employment; or
• Any other matters relevant to the substantial adverse effect on the operation of the employer’s business, profession or occupation.

In terms of terminating remote working arrangements, the obligation is that the employer considers whether the reasons for terminating the arrangement are objective, fair and reasonable. The employer must also set out the grounds for the decision in a clear manner to help the employee understand why the arrangement is being terminated and that the decision has been given due consideration. The employer is also obliged to consider in an objective, fair and reasonable manner any representations made by the employee who has received the notice and whether any alternative arrangements other than termination might be feasible depending on the particular circumstances.

The Code does provide that if the employer decides to proceed with terminating the remote working arrangement, the employee must return to their original working arrangement on the dates stated in the notice.

In terms of a flexible working arrangement, a notice of termination must set out the reasons for termination and specify the date on which the employee must return to their original working arrangement. That date cannot be earlier than four weeks from the date of receipt of the notice of termination unless the date the approved flexible working arrangement comes to an end is less than four weeks from the date of receipt of the notice.

An employer who proposes to give notice of termination of a flexible working arrangement must first do the following:

• Notify the employee in writing of the proposal to terminate the arrangement; and
• Include details of the grounds for termination; and
• Give the employee seven days to make representations in relation to the proposal; and
• Consider any representations made by the employee before deciding whether to give notice of termination.

Again, the employer must consider whether the reasons for terminating the arrangement are objective, fair and reasonable and must set out the reasons for the decision in a clear manner to have the employee understand why the arrangement is being terminated and that the decision has been given due consideration. Again, the employee can make representations on receiving the notice which the employer must consider, and consideration must also be given to whether alternative arrangements might be feasible other than termination depending on the particular circumstances of each case.

However, again, if the employer does decide to proceed with terminating the arrangement, the employee must return to their original working arrangement on the date stated in the notice.

7. Can an employee apply to return to their previous working arrangement?

Yes, in both remote working and flexible working scenarios, an employee can request by written notice to return to their original working arrangement earlier than had been approved by providing reasons and a proposed date of return. The employer must consider and give notice within four weeks of receipt as to whether the request has been approved or refused and the reasons for any refusal. In considering that request, the employer again must have regard to their own needs, being the needs of the business, and the employee’s needs and the Code of Practice.

The Code also sets out that in relation to remote working arrangements, an employer should consider any applicable legal or contractual obligations owed by either party before approving or refusing the employee’s request to return to their original work arrangement. The Code sets out that if the employer agrees to the early return, they can propose an alternative date for the employee to return to their original working arrangement. The Code also sets out that on the expiration of an employee's remote working arrangement, the employee is entitled to return to the original work arrangement they held immediately before the approval of the remote working arrangement and the same applies in relation to flexible working arrangements.

8. What happens if an employee is abusing a remote or flexible working arrangement?

The Code provides that, in relation to remote working arrangements, an employee must continue to meet all the requirements of their role while they are working remotely and if an employer has reasonable grounds for believing that the employee is not fulfilling all the requirements of their role, they can give an employee notice of termination of an arrangement setting out the reasons for termination and specifying a date on which the employee must return to their original working arrangement.

However, in a case where an employer suspects abuse, and intends to terminate as a result, they must first do the following:

• • Notify the employee in writing of the proposal to terminate the arrangement; and
  • include details of the grounds for terminating;
  • Give the employee seven days to make representations in relation to the proposal and consideration any representations made by the employee before deciding whether to give notice of termination.

The employee is then required to return to their original working arrangement seven days after receiving notice of termination for abuse.

9. Are employees protected from penalisation in remote or flexible working arrangements?

Yes, the Code reflects the legislation which provides that an employer must not penalise an employee for proposing to or having exercised their rights to make a request for remote or flexible working or requesting to return to a previous working arrangement.

10. How does an employee raise concerns under the Code?

The Code provides that situations may arise where an employee feels that their flexible or remote working request has not been considered in line with the legislation and/or the Code. The Code encourages employers and employees to resolve issues at local level and where there is a collective agreement between a trade union and the employer, the parties should refer to those terms for raising grievances.

The Code sets out that larger organisations with discreet HR units could consider designating a member of the HR team to be the point of contact for remote working or flexible working issues.

The Code also provides that if an informal process has not been successful in resolving the issue, then the formal company grievance procedure could be utilised.

The Code also sets out that notwithstanding that a breach of the Act can be referred to the WRC at any point, if the matter is addressed through the Company grievance procedure and remains unresolved on completion, the employee could refer the matter to the WRC citing the Code.

Specific breaches of the Act can be referred to the WRC within six months of the date of the alleged breach and this time period can be extended to twelve months where the Adjudication Officer is satisfied that there is reasonable cause for the employee not having referred the matter during the initial six month period.

The Code helpfully sets out that under the Act, neither an Adjudication Officer of the WRC nor the Labour Court has the legal power to assess the merits of any decision made by an employer in relation to a remote working or flexible working application. This means that they cannot look behind the merits of the decision they can only look at the process which lead to the employer’s decision.

We anticipate that this section of the Code is going to be quoted regularly in caselaw where employers are arguing that it is the merits of the decision which is being challenged by the employee as opposed to the process which led to the employer’s decision.

11. Are employers obliged to keep records under the Code?

Yes, employers must keep records of approved remote working or flexible working arrangements taken by their employees and employers who fail to retain such records is liable to a fine of up to €2,500. Records must be kept for three years and must include the following:

• • The period of employment of each employee; and
  • The dates on which each employee was on an approved flexible working or remote working arrangement; and
  • The number of times each employee was on an approved flexible working or remote working arrangement.

All notices, or copies of notices, given or received by an employer or an employee must also be retained by the employer and the employee for one year. Therefore, if for example, an employee applied for a remote or flexible working arrangement and was refused, those records should be retained for one year.

Conclusion

The Code provides useful guidance for employers on how to handle and consider requests for remote and flexible working. For those employers with policies already in place, a comparison should be made between the content of the Code and the content of the existing policies to examine where any gaps might be.

Our RDJ LLP Employment Team is helping clients to navigate this area and we are delighted to finally have the Code to assist us in doing so.

Please do not hesitate to contact us for further advice and guidance in this area.