Analysis: If your job means you can work from home, you have a legal right to request remote working - but your employer can say no
Working from home became the norm for many people since the pandemic and successive lockdowns. Indeed, there has been a discernible shift in attitudes among workers about returning to the workplace on a full-time basis, with many seeking out employment opportunities to accommodate more flexible working patterns. For many employees, there are significant benefits to remote working arrangements, including less time spent commuting, better work-life balance, the ability to live in more affordable areas etc.
While there are a greater number of advertised positions offering remote working than ever in Ireland, there is a growing trend among employers requiring their employees to return to the office on a full-time basis. Reasons commonly cited by employers as to why they want their employees to return to the workplace full-time include the need to improve productivity, work culture, team building, collaboration among other factors.
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The ability to work from home is quite simply not a reality for a large proportion of Ireland's workforce, such as emergency services personnel, retail and hospitality workers, refuse collectors, drivers, construction workers, healthcare workers, farmers etc. But if the nature of your job is such that you could work from home, do you have a legal right to request remote working? And is your employer under any legal obligation to provide an option for remote working?
What's the definition of remote working?
The Work Life Balance and Miscellaneous Provisions Act 2023 provides that employees now have a legal entitlement to request remote working arrangements. It defines remote working arrangements as "an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer's place of business without change to the employee’s ordinary working hours or duties."
This legislation provides employees with a right to request remote working arrangements and this entitlement is available for all employees of any age, including part-time and fixed-term employees. New employees can submit a request for remote working arrangements on the first day of employment. However, even in circumstances where the employer approves the new employee’s request for remote working arrangements, these arrangements will not begin immediately as employees are required to have worked for six months in continuous employment before any approved remote working arrangements commence.
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Any employee who has been in continuous employment for a period of six months prior to submission of their request for remote working arrangements, will also have to wait before any approved remote working arrangements come into effect, simply because once you submit your request, there is a four-week period for the employer to evaluate your request. In some instances, the employer may deem it necessary to extend the review period up to a maximum of eight weeks where there may be challenges concerning the feasibility of remote working arrangements.
Employees who have a gap of less than 26 weeks continuous service for the same employer (such as employees on non-successive fixed term contracts who are re-hired by the same employer) will be deemed to be in continuous employment. Therefore, the period of continuous employment is deemed to be the first day of the first period of employment with the relevant employer.
How do I request remote working arrangements?
Employees are required to submit a written request for remote working arrangements, which must also be signed. They can draft their own written request. Alternatively, employees may prefer to adapt and complete the template application contained in the Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working.
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Employees must provide certain information with this written request, including:
- the details of the remote working arrangements, for example, is the employee seeking permission for remote working for specific days or number of days;
- the proposed start date, and if the request is for a fixed period of time, the end date of the remote working arrangements;
- the reasons for the remote working arrangements request;
- information about the proposed location for remote working.
Do have to give a reason for the request?
Employees can provide any reasons relevant to their own individual circumstances to support their remote working request, for example to balance work life with family or caring responsibilities; or reduce the amount of time spent commuting to a workplace.
Employees must explain that they will be capable of undertaking their usual work responsibilities to the same standard at the remote working location.
What do I need to say about my proposed remote working location?
Employees must provide the employer with details of the proposed remote working location and relevant information about the suitability of this location. The location may be the employee’s home, or it might be a work hub facility elsewhere.
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The Workplace Relations Commission Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working contains further guidance on the specific information that employees must include in support of their request.
Employees will have to confirm that the workstation at the proposed remote working location is properly equipped for the purposes of undertaking their usual tasks and responsibilities in accordance with their contract of employment. Details may be required about the distance of the remote location workplace from the on-site workplace.
Employees are under an obligation to comply with the employer’s policies and procedures relevant to privacy, data protection and intellectual property. Unsurprisingly, employees must ensure that they have access to any relevant technology and equipment necessary to facilitate their ability to work remotely. Employees have a duty to ensure that the internet connection is secure and adequate, and functional.
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Employers may conduct a risk assessment of the proposed remote working location to ensure compliance with those obligations arising under the Safety, Health and Welfare at Work Act 2005. Employers can also request that employees provide additional information about the proposed remote working arrangements to help evaluate the request.
Are employers obliged to allow employees to work from home?
The short answer is no. The reality is that employers only have a legal obligation to consider the request for remote working arrangements in an objective, fair and reasonable manner. Employers are required to evaluate the employee’s request, based on the employer’s business needs, the employee’s needs and the requirements set out in the WRC’s Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working.
What can an employer consider when assessing the request?
The WRC’s Code of Practice contains an indicative list of factors that employers may take into consideration as part of their evaluation of an employee’s remote working request. For example, when assessing whether a job can be carried out effectively at a remote working location, the employer will need to identify the employee’s main duties and responsibilities and determine if these are suitable for remote work.
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Other factors the employer may consider include whether the nature of the job involves a greater degree of manual work; if specialist equipment, technology or data necessary for proper performance of the job is only available on-site at the normal place of work; the impact that remote working might have on the business’s organisational operations.
Employers have up to four weeks to review the request, with the option of extending the time to do so up to 8 weeks maximum. Employers are obliged to provide written notice where additional time is sought to review the request. Employers can decide to either approve or reject the remote working arrangements request.
Where the employer approves the request, a written agreement detailing any relevant details of the arrangements, including the start date and where applicable, the expiration date of the remote working arrangements. Both the employer and employee must sign the written agreement. The employer has a duty to keep a copy of the signed agreement and to supply the employee with a copy as well. This agreement will be added to your contract of employment. In some instances, the remote working agreement may necessitate some changes to the terms and conditions of your employment contract. Written reasons must be provided by the employer if the request for remote working is not approved.
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Can a remote working arrangement be changed?
Changes can be made to any approved remote working arrangement with the agreement of both the employer and employee prior to commencement of, or during, the arrangement. Any changes must be agreed in writing. Changes may include variation of the commencement date, adjustments to the length of the remote working period, or amendments to any component of the remote working agreement.
Both the employee and employer can request to terminate the remote working agreement. Employees may decide they wish to end the remote working arrangement for any reason. In such circumstances, employees must submit a written request to the employer seeking permission to return to the workplace and provide a proposed date of return. Employers must respond to this request within 4 weeks. The employer may provide a different date of return for the employee.
Employers can terminate the remote working arrangement if it is no longer suitable for their business needs. Employers will have to show that the rationale for ending the remote working arrangement due to business needs is objective, fair and reasonable.
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Employers also have the right to terminate a remote working agreement if they have reasonable grounds to believe that the employee is not complying with their contractual obligations, and there is any abuse of the arrangement.
Employers must provide written notice with reasons for termination of the remote working arrangement and indicate a date for the employee’s return to the office. Employees will have an opportunity to submit representations in response to the proposed termination of remote working arrangements.
Can I challenge my employer's decision?
Employees who feel that their employer has failed to fairly or reasonably consider the remote working request in accordance with the legislation and WRC Code of Practice, should raise these concerns with the employer in the first instance. If this is unsuccessful, employees should formally submit a complaint via the internal grievance procedures (details of these procedures may be contained in the employment contract, company policies and procedures, or collective agreement between a trade union and the employer).
Complaints concerning the employer’s breach of the WRC Code of Practice may be submitted to the Workplace Relations Commission within 6 months of the breach.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
