Nóra Cashe explains the obligations, compliance, and acceptance and rejection procedures for employers outlined in the Work Life Balance and Miscellaneous Provisions Act 2023 Code of Practice

The Code of Practice (the Code) for the right to request flexible and remote work has been released. Now that these two rights are in effect, employees can request these entitlements.

So, do you know your obligations as an employer, and do you understand how to comply with the new legislation?

What are the rights to request remote and flexible work?

The right to request flexible working and the right to request remote working are the last two of five statutory parts to come into effect within the Work Life Balance and Miscellaneous Provisions Act 2023.

While many of the same guidelines apply to these two entitlements, they are separate.

‘Flexible working’ is defined as the adjustment of an employee’s working hours or working patterns. This includes flexible working schedules, reduced working hours, or even remote working.

The right to request flexible working only applies to parents and to those acting in loco parentis or guardians as defined by the Act.

Meanwhile, ‘remote working’ is an arrangement between employer and employee in which the work is carried out at a location other than at the employer's place of operation. This is done without any change to the employee's ordinary working hours.

What is the Code of Practice?

Drafted by the Workplace Relations Commission (WRC), the Code provides practical guidance for businesses and their staff regarding flexible or remote work requests.

It is separated into three sections.

The first two sections are Flexible Working (FW) and Remote Working (RW), which lay out guidelines for employees and employers to follow when requesting or receiving requests for flexible or remote working arrangements.

The last section consists of policies and templates. Here, employers can find templates to use for relevant documentation, such as a Work Life Balance Policy, a Flexible Working Request application, and a Remote Working Request application.

Staying compliant

The Code defines flexible and remote work and provides the details on who can apply and when.

The Code also contains important timelines and procedures for employers and employees to follow when a request is made and the consequences for not doing so.

Failure to follow the timelines and procedures and to keep records could result in an award of up to 20 weeks of remuneration and/or a costly fine/summary conviction.

Additionally, the Code of Practice includes information on situations such as:

• the abuse of any new working arrangements;
• the need to modify new working arrangements; and
• the need for the employee or employer to terminate the new working arrangements.

Acceptance or rejection procedures

Employers are not obligated to accept requests for remote or flexible work but it’s important to remember that a response must be delivered to the employee in writing within four weeks of their request.

The three responses an employer can give are:

• Extension: the employer may request up to four more weeks to consider its decision, which it must also do in writing.
• Refusal: the employer must lay out its reasoning in writing.
• Acceptance: the employer must produce a written document with the relevant details for the employee to sign.

Overall, employers are advised to weigh their employees’ circumstances and rationale for these requests against their own business needs.

In addition, the Code provides tangible questions that employers may ask themselves when deciding whether to approve or reject a request.

Nóra Cashe is a Litigation Manager at Peninsula