A Revamp for the Right to Request Remote Working

The right to request remote working received a lot of media attention when it was first proposed earlier this year. At the time, it was hailed as revolutionary and likely to change the culture of work for good.
 
However, the devil was in the detail! Once published, the draft legislation was heavily criticised for favouring employers and being effectively meaningless in granting any right to employees. One such criticism was that employers were given broad discretion to refuse a request to work remotely and the legislation included a non-exhaustive list of 13 possible reasons, which seemed to cover virtually every scenario. In addition, there was no recourse for employees if their request was refused.  

The Government has recently announced that the right to request remote working will be introduced through the Work Life Balance Bill (rather than progressing the draft legislation published earlier this year), which includes a more general right to request flexible work for parents and carers. According to the Department of Enterprise, Trade and Employment, integrating the two bills in this way will accelerate the introduction of the right to request remote work and enhance the right itself. The Work Life Balance Bill is currently being debated by the Dáil and the Government committed to introducing the Bill before the end of the year (although this seems to be a very tight timeframe). In addition, the WRC is expected will develop a new Code of Practice which employers will be required to have regard to when considering a request.

What to expect under the Work Life Balance Bill – Remote Working
While the Work Life Balance Bill has yet to be finalised, below is an overview of what to expect:
 

• All employees will have a right to request remote working. However, the right to request any other type of flexible working, such as reduced working hours or adjusted working patterns, will remain limited to parents and carers.
• Employees must have at least 26 weeks service to be eligible to apply. This service requirement is currently under debate but is unlikely to change.
• A decision must be made within 4 weeks of receiving a request. This timeline can be extended by a further 8 weeks where the employer is having difficulty assessing the viability of the request (although it is not clear from the legislation what exactly is meant by this).
• When considering a request, an employer must have regard to both the business needs and the needs of employees. This provides a very broad discretion for employers to refuse a request. However, at the very least, employers would be expected to assess their actual business needs and balance them with the needs of their employees.
• If approving a request, employees must be furnished with an agreement setting out the details of the arrangement in writing and the commencement date. The agreement must be signed by both the employer and employee.
• If refusing a request, the employee must be informed in writing including reasons for the refusal.
• The commencement of the arrangement can be postponed by up to 6 months if it would have a substantial adverse effect on the operation of the business due to certain specified reasons including seasonal variations in volume of work, the number of employees in employment, unavailability of someone to cover the employee's duties.
• Where an employer does not comply with their obligations or if an employee is penalised for making a request, the WRC can order an employer to comply and award compensation of up to 20 weeks salary.

Conclusion
While the current draft will likely be amended further before the Work Life Balance Bill is implemented, it gives us a good indication of what to expect. The legislation as currently drafted still gives employers broad discretion to refuse a request and it is yet to be seen whether the new Code of Practice will place further parameters on the grounds for refusal. More generally, it will be important for employers to adhere to their obligations once the legislation is introduced due to the potential financial consequences of a breach. 

In addition to the above, the Work Life Balance Bill will also introduce a new statutory entitlement to paid medical care leave and domestic violence leave. Eligible employees will be entitled to up to 5 days paid leave per year. This is in addition to the introduction of paid statutory sick leave from 1 January 2023.

Written by: Maeve Griffin