At the time of publishing this article, we had expected that the Workplace Relations Commission (WRC) would issue its long-awaited Code of Practice on the right to request remote working and the right to request flexible working (parents and carers). A spokesperson for the Department of Enterprise, Trade and Employment indicated last month that The WRC intended to finalise the code by 31 January.
While we are still not certain of the exact timelines for the publication or commencement of the new code, what is certain is that when introduced, many Employers will face new challenges in managing flexible and remote working requests.
In this article, we explore the updates so far under The Work Life Balance and Miscellaneous Provisions Act 2023 (Work Life Balance Act) and the potential business impacts for Employers. The Work Life Balance Act has already introduced substantial new employment rights and obligations.
Background of the Work Life Balance and Miscellaneous Provisions Act 2023
The objectives of the Work Life Balance and Miscellaneous Provisions Act 2023 (Work Life Balance Act) are to support a better balance of family life, work life, and caring responsibilities for Employees. The Act was signed into law by President Michael D Higgins on 4 April 2023, with a commencement date of July 3rd, 2023, for some of the provisions relating to medical care leave and time off for breastfeeding. We shared greater details of these updated provisions in our August newsletter. Effective from Monday, November 27th, 2023, the legal entitlement of up to five days paid leave over a period of 12 months was made available to Employees affected by domestic violence.
Introduction of New Types of Statutory Leave
There were several new types of leave. See below for more details on the eligibility, length, and Employee pay entitlements for these new leave types.
New Leave Types and Extensions under the Work Life Balance Miscellaneous Provisions Act 2023
| Leave | Who can avail of it | Length & Paid/ Unpaid |
|---|---|---|
| Domestic Violence Leave | Any Employee affected by domestic violence | 5 days – Yes, Benefit will be paid (rate TBC) |
| Medical Care Leave | Any Employee providing personal care or support to certain persons that require significant care for serious medical reasons. | 5 days – unpaid |
| Flexible Working Conditions | All Employees after 6 months of employment caring for children under 12 (or 16 if the child has a disability or long-term illness) | Terms of reduced/adjusted hours to be agreed per Company unpaid |
| Extended Right to Maternity Leave | Pregnant transgender male with a gender recognition certificate | 26 weeks – Yes, Maternity Benefit paid |
| Extended Period of Leave for Breastfeeding | Employees that are Breastfeeding | Extended to 104 weeks from 26 weeks – Yes Employee entitled to 1 hour per day paid leave |
New Code of Practice on the Right to Request Remote and Flexible Working
The eagerly anticipated Code of Practice is intended to provide additional guidance for Employers on managing requests for remote and flexible working arrangements and the parameters Employers should consider when approving or declining requests. Let us look at the information we have so far relating to remote and flexible working.
The Dynamics of Remote Working
Adare’s latest research published in our HR Barometer 7.2 (Oct 2023) revealed most Organisations surveyed have implemented various forms of hybrid and blended working. 72% of Organisations had hybrid and blending working practices, which represented a 17% increase since the previous year. With the new code imminent, this will likely impact the average number of days in the workplace in 2024.
What is Remote Working?
Remote working enables Employees to perform their job duties from home, a shared hub, or another location upon prior agreement with management, during some or all of their standard working hours. Although remote working offers flexibility, it does not imply a change in working hours or other flexible working arrangements, unless such changes are pre-approved by the Employer.
What is the Right to Request Remote Work?
The Work Life Balance Act provides for the right to request remote working arrangements for all Employees who have six months of continuous service with their Employer. Furthermore, the request should be dealt with promptly and transparently by Employers.
Who is Eligible to Avail of The Right to Request Remote Work?
Employees with six months of continuous service have the right to commence an approved remote working arrangement. An Employee must submit the request in writing 8 weeks before the proposed commencement of the arrangement.
Do Employers have to grant remote work requests?
Upon receiving a request for remote working, Employers should carefully evaluate the application. This evaluation must consider the Employer’s operational needs and the Employee’s personal requirements. Employers will have to maintain a written remote work policy and adhere to the stipulations outlined in the upcoming Code of Practice. The Employer must respond to the request not later than 4 weeks after receipt of the request and should allow for an internal appeal process.
While the right to request remote and flexible work mirror each other in many regards there are some distinct differences such as the eligibility criteria. It is also important to remember that a remote working agreement is different from a flexible working arrangement and must not be treated as such by Employees unless agreed in advance with the Employer.
The Dynamics of Flexible Working
A flexible working arrangement refers to an adjustment in an Employee’s work hours or patterns, which can include remote working, flexible schedules, or reduced hours. In cases where remote work is sought for caregiving, such duties should be performed outside of work hours.
Are all Employees eligible for flexible work requests?
No, flexible work requests will be limited to Employees in caring roles.
What are the eligibility criteria to request/avail of flexible work arrangements?
Employees who are a relevant parent of a child up to the age of 12 years or 16 years if the child has a disability or long-term illness and provides care to that child may apply for these arrangements. It may also be applicable for Employees providing personal care or support to a relevant person, namely:
- a person of whom the Employee is the relevant parent/adoptive parent;
- the spouse or civil partner of the Employee;
- the cohabitant of the Employee;
- a parent or grandparent of the Employee;
- a brother or sister of the Employee;
- a person who resides in the same household as the Employee;
- and is in need of significant care or support for a serious medical reason.
Can Employers request proof of eligibility for flexible work?
The Organisation may require you to provide additional information in respect of the above before confirming the arrangements.
How much notice must an Employee give to request a flexible work arrangement?
A request should be submitted in writing at least eight weeks before the arrangement is intended to start.
Do Employers have to grant flexible work requests?
No. But Employers must confirm the decision on the request in writing within four weeks of the request being made, detailing the arrangement and how this will impact their current term and conditions of employment.
If an Employer is having difficulty assessing the viability of the request for a flexible working arrangement, they may extend their response by a further period not exceeding eight weeks.
Employees should be aware that an Organisation can refuse or postpone such a request if it cannot be accommodated on reasonable grounds. Employers must provide reasons for any refusal or postponement in writing.
If circumstances change, are there grounds to terminate the flexible work arrangements?
Employers can end a remote working arrangement with written notice if it significantly hinders business operations due to factors like seasonal work fluctuations, lack of staff to fulfil the Employee’s role, the nature of the Employee’s duties, or other relevant issues. The Employer must inform the Employee of the proposed termination and state the reasons.
The Employee has seven days to respond. The Employer must then weigh the Employee’s response, business needs, Employee needs, and code of practice guidelines before deciding. If termination is pursued, at least four weeks’ notice is required. An expedited termination process is available under certain circumstances, allowing for a shorter notice period.
What are some of the challenges Employers may face when managing remote and flexible work requests?
The introduction of the right to request remote and flexible working arrangements presents several potential challenges to Employers.
While remote and flexible working practices aim to improve work-life balance, they raise concerns about their impact on organizational culture and Employee engagement. According to our latest HR Barometer 7.2 (Oct 2023), there has been an increase in challenges to organizational culture, rising from 36% in October 2022 to 45% in 2023. As organizations prioritize retention and engagement in 2024, they need to invest in addressing these cultural and engagement shifts resulting from new working models.
Employers will have to ensure that any arrangements agreed upon will align with organisational operations without negatively impacting service levels.
Critically, Employers will need to apply policies equitably. When considering or implementing flexible or remote working arrangements, Employers must be aware of their responsibilities as outlined in several key legislations and codes of practice. These include the Organisation of Working Time Act 1997, the Workplace Relations Commission’s (WRC) Code of Practice on the Right to Disconnect, the Safety, Health and Welfare at Work Acts spanning from 2005 to 2014, the General Data Protection Regulation (GDPR), and the Data Protection Acts from 1988 to 2018. Compliance with these regulations is crucial for the lawful and effective implementation of such work arrangements. Denying an Employee’s request could potentially be considered indirect discrimination based on family status or disability grounds.
What should Employers do next?
Many Employers have already introduced policies and procedures for remote working and flexible working in anticipation of the new obligations. However, when the new Code of Practice is published, we strongly encourage businesses to compare their existing policies against the code to ensure compliance with the new provisions.
If you need support preparing for these upcoming changes, please do contact our experts in Adare on 01 561 3594 / 061 363 805 or email info@adarehrm.ie.