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Employers are calling staff back to the office. What are your rights?

Ask the expert: Catherine O’Flynn, new employment law & benefits partner at Mason Hayes & Curran, explains

Flexible working involves adjusting an employee’s work hours or patterns to suit their needs. Photograph: iStock
Flexible working involves adjusting an employee’s work hours or patterns to suit their needs. Photograph: iStock
Mon Sept 02 2024 - 05:00

We are hearing anecdotal reports of businesses calling employees back into the office due to concerns about performance and collaboration, says Catherine O’Flynn, a new employment law & benefits partner at Mason Hayes & Curran. This is against the backdrop of a desire on the part of employees to continue with an element of working from home for various reasons, not least an improved work-life balance.

The Work Life Balance and Miscellaneous Provisions Act 2023 grants employees a statutory right to request flexible working for caring purposes and remote working arrangements. The associated Employers and Employees Right to Request Flexible Working and Right to Request Remote Working Code of Practice builds on the Act and offers practical guidance to help employers understand their obligations. Although the code is not legally binding, it represents best practice and may influence decisions by the Workplace Relations Commission (WRC) and the Labour Court.

Catherine O’Flynn, employment law & benefits partner, Mason Hayes & Curran LLP. Photograph: Conor McCabe
Catherine O’Flynn, employment law & benefits partner, Mason Hayes & Curran LLP. Photograph: Conor McCabe

What is flexible/remote working and who can apply for it?

Flexible working involves adjusting an employee’s work hours or patterns to suit their needs. This can include part-time work, flexitime, compressed hours, remote work or job sharing. Remote working allows an employee to perform their duties at a location other than their employer’s place of business. All employees are entitled to request remote working, however, to request flexible working an employee must be either:

  • A parent or in loco parentis to a child under 12 (or under 16 if the child has a disability or illness) who will be providing care to that child
  • Providing personal care or support to a person who requires significant care or support for a serious medical reason (including the employee’s child, spouse, civil partner, cohabitant, parent, grandparent, sibling or a person who resides with the employee).

While all employees are entitled to make these requests from the start of their employment, they must have six months’ continuous service before an arrangement can be put in place.

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What information must an employee include in their request?

Employees must submit a written request for flexible or remote working at least eight weeks before the intended start date. The request should be signed by the employee and include the:

  • Form of arrangement.
  • Proposed start date.
  • Proposed duration.

For flexible working requests, employees may need to provide the following where applicable:

  • The child’s birth certificate.
  • Details of the person whom the request relates to.
  • Details of the employee’s relationship to the person.
  • A medical certificate evidencing the significant care required by that person.

For remote working requests, employees must provide:

  • Their specific reasons for requesting remote work, such as reducing commute time or improving work-life balance.
  • Details on the proposed remote working location and its suitability. The remote working code of practice suggests this may include information on workstation suitability, assurances to comply with data protection obligations and an agreement to a risk assessment.

What must employers consider when a request is made? Is an employer obliged to agree to a request?

Employees do not have an automatic right to flexible or remote working. Instead, employers are required to consider requests having regard to their own needs, the employee’s needs and the requirements set out in the code. Specifically, it requires that employers should:

  • Consider requests and the suitability of the arrangement in an objective, fair and reasonable manner.
  • Consider alternatives if the proposed arrangement is not feasible.

Employers are required to respond to a request within four weeks, but this can be extended by an additional eight weeks if more time is needed to evaluate the request.

What happens when a request is agreed to or refused?

If a request is accepted, the agreement must be documented, signed by both parties and include the arrangement details, start date and duration. Employers must keep a record of this agreement for three years and provide a copy to the employee.

If a request is refused, the employer must provide the employee with a written notice of refusal, including the reasons for the decision.

Can the arrangement be changed or terminated?

An employer and employee can agree in writing to change an arrangement either before or after its commencement. An arrangement can also be terminated by the employer with at least four weeks’ written notice if:

  • The arrangement has or is likely to have a substantial adverse effect on the business.
  • There are reasonable grounds to believe the arrangement is not being used as agreed.

Before terminating an arrangement, employers must inform the employee of the proposal in writing, together with the relevant reason(s), and allow seven days for the employee to respond.

In making this decision the employer must again have regard to the requirements of the code as detailed above.

Catherine O'Flynn and Melanie Crowley, head of the employment law & benefits team. Photograph: Conor McCabe
Catherine O'Flynn and Melanie Crowley, head of the employment law & benefits team. Photograph: Conor McCabe

Can employees bring a claim under the new legislation?

If an employee believes their rights under the Act have been breached, they can file a complaint with the WRC within six months of the alleged breach. The WRC has the power to direct compliance and/or award compensation up to 20 weeks’ remuneration for flexible working claims and up to four weeks for remote working claims.

Employers who fail to maintain records of approved arrangements may be guilty of an offence and fined up to €2,500. Additionally, if an employee is penalised for making a request which results in their dismissal, they may seek redress under the Unfair Dismissals Acts.

What steps should employers be taking now to get organised?

In a recent decision, welcomed by many employers, the WRC clarified that it will not investigate the merits of an employer’s decision in deciding to accept or refuse a remote working request. Rather, its role is strictly limited to assessing whether the employer complied with the procedural requirements of the Act, namely to:

  1. Consider the request having regard to its needs, the employee’s needs and the requirements of the code; and
  2. Either approve the request or notify the employee in writing of its refusal within four weeks; or
  3. Extend this period by a further eight weeks to adequately consider the request before responding.

In light of this decision, it’s important that employers review their flexible and remote working policies to ensure they are aligned with the requirements set out in the Act and its associated code. It is essential that employers give all requests due consideration and adhere to the prescribed time frames to prevent any potential claims.

For more information and expert advice, please contact a member of the Employment Law & Benefits team at Mason Hayes & Curran