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This article was co-authored by Catherine Forristal, Placement Student.
Working in a location other than the employer’s place of business, more commonly referred to as ‘remote working’, is now a recognised sustainable business practice. Studies have found that workers who adopt a hybrid model by working remotely from home 2-4 days per week can reduce their carbon footprint by up to up to 29%.[1]
While remote and hybrid working practices are often implemented as part of broader corporate social responsibility initiatives and to aid overall employee wellbeing, it is important to underscore their environmental benefits. Whatever the motivating factor, these models are here to stay long term.
In recognition of this, the Work Life Balance and Miscellaneous Provisions Act 2023 (“the 2023 Act”) introduced a statutory right for employees to request remote working. This has recently been supplemented by the Remote Working Code of Practice (“the Code”) which was published by the Workplace Relations Commission (“WRC”) in January 2024. The Code explicitly recognises the positive environmental impacts of remote working, along with other benefits such as increasing participation amongst women, older people and people with disabilities.
While the provisions for remote working are yet to be commenced by the relevant Minister, employers should start preparing to receive such requests and be aware of the penalties for non-compliance.
Guidelines under the Code
The Code aims to assist employees and employers to navigate the complexities of requests for remote working arrangements.[2]
For employees:
- Employees have a right to request a remote working arrangement from the first day of their employment. However, they must complete a minimum of six months’ continuous employment before an approved arrangement can begin.
- Employees must give details of the arrangements sought and the reasons in writing for the request (an online application satisfies this requirement) . The Code provides sample reasons for requesting remote working, including reducing a daily commute and carbon foot-print.
For employers:
- Employers must respond to a remote working request within 4 weeks, having regard to the Code and the business and employee’s needs.
- Requests must be dealt with in an objective, fair and reasonable manner.
- An employer may consider the suitability of the role for remote working and the employee’s suitability to work remotely. To assist with this assessment, the Code sets out a non-exhaustive list of possible questions to be addressed by the employer.
- Where an employer cannot approve the requested remote working arrangement, the parties should consider whether an alternative arrangement is feasible. The Code provides that an employer can terminate a arrangement if the employer is satisfied that it would have “a sustainable adverse effect” on the business. An employer should consider if their reasons for terminating the arrangement are objective, fair and reasonable.
- An employee must not be penalised for making a RW request.
Employee redress where a remote working request is refused
Under the 2023 Act, the WRC does not have the power to assess the merits of any decision made by an employer in relation to remote working; they can only look at the process which led to the employer’s decision and the reasons for the refusal.
Where the WRC finds a breach of the process, it may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding four weeks’ remuneration.
Employers must keep a record of approved arrangements for three years. Failure to do so risks a fine of up to €2,500.
Case law
Outside of the 2023 Act and the Code, employees may also seek RW arrangements under reasonable accommodation laws. Two recent WRC decisions demonstrate that employees may be entitled to compensation where such arrangements are refused.
In An Operation Co-Ordinator v A Facilities Management Service Provider[3], the WRC upheld a claim for constructive dismissal following the employer's refusal to allow the employee to work from home in response to the COVID-19 pandemic. The WRC held that the employer had obligations under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) which required them to put satisfactory measures in place during a global pandemic, which they failed to do. The Respondent employer was directed to pay compensation of €3,712.50. While these were unique circumstances, the possibility for an application of the 2005 Act endures.
In Sarah Treacy v Centz Retail Holdings[4], the WRC held that the Respondent employer had discriminated against the claimant employee under Section 16 of the Employment Equality Act (EEA) 1998, which compels employers to do “all that is reasonable to accommodate the needs of a person who has a disability”. The claimant had sought a remote working arrangement as a reasonable accommodation in respect of a recognised disability (ADHD). This was refused by her employer, and a complaint was made under Section 77 of the EEA. The WRC awarded compensation of €5,000.
Comment
With so many workers enjoying remote working arrangements, particularly since 2020, organisations can expect claims to be brought on the foot of the RW related laws and the Code.
The Code sends out a strong message that the WRC sees many benefits to remote working and that requests should be taken seriously. Employers should not use the Code as merely a box-ticking exercise and proper consideration should be given to all requests.
Similarly, employees should also ensure that their remote working requests adhere to the Code so that the employer has a complete understanding of the arrangement sought. As in nature, the employee/employer relationship is most sustainable where there is positive symbiosis.
The World Commission on Environment and Development defined "sustainable development" as “Meeting the needs of the present without compromising the ability of future generations to meet their own needs”. Likewise, the sustainability of remote working relies on meeting the needs of the employee without compromising those of the employer.
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