Mixed views on flexibility rules as workers say code is toothless

Irish Examiner

2 days ago

Workers are unimpressed by the code of practice for employers and employees on the right to request flexible working and remote working.
A year on since the implementation of the new code, many workers remain unconvinced that the code has really empowered them in relation to their flexible and remote working rights.
In this Q&A interview, Joanne Hyde, partner at law firm Lewis Silkin Dublin, explains why workers have welcomed the clarity brought by the code. She also explains why many workers also feel the code leaves the control over any employee requests around flexible work options firmly in the hands of the employer.
What are the key changes that this new code has introduced?
The Work Life Balance and Miscellaneous Provisions Act 2023 introduced a number of legislative changes as follows:
An entitlement to up to five days paid domestic violence leave;
A right to request flexible working to provide personal care for a close relative who is in need of significant care for a serious medical reason;
A general right for all employees to request remote work In both the latter case, the legislation only gives a right to request the flexible or remote work, not a right to be approved for such an arrangement.
The Code of Practice which was published in March 2024 set out in detail the steps which an employee must take if requesting flexible or remote work and the steps that the employer must take on receipt of a request. The Code also sets out a non-exhaustive list of the considerations that an employer may give to a request.
What clarity has the new code brought to flexible and remote working requests?
Before the Code of Practice was introduced, there was a lack of clarity as to how employees could make a request for flexible or remote work and as to how employers were required to respond. The Code sets out in detail the processes for making and managing request and the relevant timelines. A standardised formal process assists employers in assessing requests in a consistent, objective, and reasonable manner. The Code assists with developing policies around the making and management of requests and includes template forms. While most workplaces had already introduced some element of hybrid working following the pandemic, there was still a lot of misconception as to what an employee was entitled to by way of flexible or remote working. From an employee perspective, the Code has legitimised flexible and remote working by putting them on a formal legislative footing. From an employer perspective, it gives greater clarity on how to manage requests and the factors to be considered.
Do all parties see the codes as striking a balance between business and personal needs?
Trade unions, politicians and employee representatives have been critical of the Code of Practice. The main criticism is that while the legislation and the Code provide a framework for employees to request flexible or remote work, there is no entitlement for employees to have those requests approved or even to challenge the reason for the refusal. Employers have significant discretion in deciding whether to grant or deny requests, and employees have limited recourse if their request is denied. The Code does not provide employees with a legal right to remote or flexible work, and there is basis for a complaint about the employer's decision to the Workplace Relations Commission (WRC).
The only complaint to the WRC is that the employer's decision was made without following the proper procedures outlined in the Code. The Code expressly states that the WRC does not have the legal power to assess the merits of the employer's decision. This means that even if an employee is unhappy about the refusal of a request, if the employer has followed the proper process in considering the request, there is no valid complaint to the WRC.
Recent cases taken to the WRC have confirmed this. The right has therefore been criticised as being meaningless or toothless. Employee representatives have also criticised the level of discretion open to employers in considering request. The Code sets out a lengthy list of the factors that an employer might consider, thereby giving employers a variety of reasons related to the job, its duties and its business needs which might be taken into account.
The employer does not necessarily need to take account of the employee's personal or individual circumstances. Others argue that the Code does nothing to address the risk of 'always on' cultures. This same criticism was levelled at the Code of Practice on the Right to Disconnect which was published in March 2021 and, likewise has had little real impact on working hours or cultures.
What will the changes mean for employers going forward?
Because the cases that have been decided thus far in the WRC have reinforced the reality that employers maintain full discretion over whether to approve or deny requests, employee and their legal advisors, may seek to utilize other legislation which give the WRC more effective rights to compensate employees and/or direct an employer to take a certain course of action. The most obvious are the Employment Equality Acts which prohibit discrimination on the basis of a number of protected characteristics including family status, age, and disability.
Certain categories of employees such as parents, caregivers and employees with disabilities are more likely to request remote work. If their requests are disproportionately denied when compared to requests of other employees, the employer's policy may be indirectly discriminatory. Where employees have a disability, there is a proactive obligation on employers to provide reasonable accommodation to enable the person to do their job, unless the accommodation represents a disproportionate burden on the employer. If an employee positions a request for flexible or remote working as being an accommodation for a medical condition (for themselves or a close family member), employers will not have the same discretion in refusing the request.
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The fact that the Code of Practice is widely seen as being imbalanced and more on the side of business and employers means that there may be pressure for further legislative reform, including giving the WRC the ability to consider the fairness or reasonableness of the employer's decision rather than overseeing adherence to the processes for considering the requests. Employees in some sectors where remote working is more difficult to implement (such as healthcare, manufacturing, and retail) complain that sectoral specific guidelines should be introduced to give them access to any form of flexible working.