In the second part of this discussion we will look at further leave entitlements being introduced by the Work Life Balance and Miscellaneous Provisions Act 2023 (‘the 2023 Act’)
Flexible Working Arrangements
Section 13B of the 2023 Act introduces the right to request flexible working arrangements for caring purposes.
Who is eligible for Flexible Working Arrangements (FWA)?
Under the 2023 Act, employees have the right to request FWA if they need to provide care. The following employees may make this request:
(1) has a child (under 12) and needs to provide (or is scheduled to provide) care for the child; or
(2) Is required to provide personal care or support to:
a) Their child (relevant parent).
b) Their spouse or civil partner.
c) Their cohabitant.
d) Their parent or grandparent.
e) Their brother or sister.
f) A person residing in the same household as the employee;
AND where (a) – (f) need significant care or support for a serious medical reason.
Details and Application Process
For FWA related to childcare, the child must be no older than 12 years old. If the child has a disability or long-term illness, the employee can apply for FWA until the child reaches 16 years of age or until the illness or disability ceases, whichever comes first.
To apply for FWA, employees must have at least 6 months of continuous service. The application should be in writing and include the type of flexible working being sought, the date of commencement, and the duration of the FWA.
The employee should submit the FWA application no later than 8 weeks before the proposed start date. The employer may request supporting information, such as a copy of the child’s birth certificate or placement certificate for adopted children. If the employee is providing personal care or support, they may need to provide information about their relationship with the person in need, the nature of the care or support required, and relevant evidence, which could include a medical certificate signed by a registered medical practitioner.
Employer’s Response and Flexible Working Agreement
Upon receiving the FWA application, the employer has 4 weeks to consider it. The employer must consider the needs of the requesting employee. If approved, the employer will provide the employee with a flexible working agreement, which acts as an addendum to the existing contract of employment. The agreement adjusts the employee’s working hours and/or place of work temporarily. Both the employee and employer should sign the agreement, and a copy should be retained by the employer.
Refusal and Termination
If the employer refuses the FWA application, they must provide written notice of the refusal and the reasons behind it. The employer can extend the response time by up to 4 weeks, not exceeding a total of 8 weeks if required in the circumstances.
During the FWA, the employer may postpone or vary the arrangement with the agreement of both parties. If the employee becomes ill or incapacitated, the FWA is automatically postponed until they are fit to resume. The employer may request relevant evidence to support an application for an extension based on the employee’s illness or incapacitation.
Termination of the FWA can occur if the employer determines that it is having a substantial adverse effect on the business. In such cases, the employer must provide written notice of termination, specifying the grounds for termination. The employee has the right to make representations within 7 days of receiving the notice, and the employer must consider these representations before finalizing the decision.
Return to Original Working Arrangements
An employee can request to return to their original working arrangements before the end date of the FWA by providing written notice to the employer. The employer has 4 weeks to consider the request, taking into account the employee’s needs. If the request is refused, the employer must provide reasons. Alternatively, the employer may propose an alternative return date or accept the employee’s request. At the expiry of the FWA, the employee has the right to return to their original working arrangements.
Abuse of FWA and Termination
If an employee abuses the FWA, the employer may terminate it but must have reasonable grounds for doing so. The termination requires written notice, specifying the reasons. The employer must notify the employee of the intention to terminate the FWA, allowing the employee to make representations within 7 days. These representations should be considered by the employer before deciding on termination.
Given the scope of the leave, employers should review their policies to account for the new legislation and ensure that the policy sets out each step in a clear manner. This should include the legislative timelines, the fact a FWA agreement will arise if agreed to, the possibility of variation or termination as well the grounds for refusal.
If an employer is considering a request for such leave, the employer must ensure an objective determination of the employees needs but also their own, which will likely be affected by labour shortages, seasonal work etc. Any subjective assessments which result in the refusal of any FWA application, will likely result in same being contested before the WRC.
Remote Working Arrangements
Section 20 of the 2023 Act grants employees the right to request remote working arrangements (“RWA”) from their employers. We will now explore the key provisions of the 2023 Act, outlining the process for applying for an RWA, considerations for employers, termination and changes to agreements, employee rights and protections, and the importance of maintaining accurate records. Let’s dive in!
Requesting a Remote Working Arrangement (RWA)
After completing six months of continuous service, employees are entitled to apply for an RWA, regardless of their employment status.
The request must be submitted in writing and signed by the employee, including essential information such as RWA details, proposed start and end dates (if applicable), reasons for seeking an RWA, proposed remote working location, and its suitability.
The RWA application should be submitted to the employer within eight weeks before the proposed start date. Employees also have the right to withdraw their application prior to approval.
Considerations for Employers
Employers must consider various factors, including the needs of the employee, the needs of the business, and the forthcoming Code of Practice associated with the 2023 Act.
Employers must respond to the RWA application within four weeks of receiving it. This period can be extended by an additional four weeks with written notice to the employee.
If the RWA is approved, the employer must enter into a remote working agreement with the employee, detailing the RWA, start date, and end date (if applicable). In case of refusal, the employer must provide written reasons for the decision.
Termination and Changes to Agreements
If the employer determines that the RWA would substantially adversely affect business operations due to specific reasons such as seasonal variations, unavailability of replacements, nature of duties, or other relevant factors, written notice of termination must be provided. The notice specifies the return-to-work date, and the employee may return to their original working arrangement upon termination.
Before terminating the RWA, the employee must receive written notification of the proposal, along with the reasons. They have the opportunity to make representations within seven days, which the employer must consider before making a final decision.
Changes to the RWA can be made with written agreement from both parties, allowing for postponement, curtailment, or variation. Such adjustments will amend the remote working agreement.
Employee Rights and Protections
Employees can request to return to their original working conditions by submitting a written request to their employer, stating the reasons and proposed return date. Employers must consider the employee’s needs and the code of practice, responding within four weeks and providing written approval or reasons for refusal. An alternative return date may be proposed.
Employers may issue a notice of termination if they have reasonable grounds to believe that the employee is not fulfilling their employment duties while on the RWA. The employee must be notified in writing of the proposal, reasons, and given seven days to make representations, which the employer must consider before deciding whether to terminate the RWA.
Employees are protected from penalization for exercising their right to remote working. Penalization includes acts such as demotion, lay-off, transfer of duties, disciplinary action, or dismissal. Compensation for contraventions can reach up to four weeks, except for dismissal, which falls under the Unfair Dismissals Acts, 1977 (as amended). The Workplace Relations Commission (WRC) can also address RWA terminations, unreasonable refusals, or failure to return employees to their original working conditions, with the power to order compensation or direct the employer to take appropriate action.
Importance of Record-Keeping
Employers must keep records of all RWA requests, including the employee’s period of employment, approved RWA dates and times. These records should be retained for three years.
Notices related to the RWA should be retained for one year. Failure to maintain accurate records may lead to liability, with employers facing class C fines upon summary conviction.
Over the course of the last 3 years, most employers have been dealing and managing remote working. Now, for the first time, remote working will have a legal footing. To date many employees have been remote working without formality or restriction. Equally, many employees have been refused permanent remote working arrangements without any avenue for recourse. Following the commencement of the 2023 Act it is advisable that employers create a remote working policy that sets out a clear guideline for the method of application for remote working. Employers working in an industry that does allow for remote working, clear guidelines should be created to explain to employees why remote working conditions are not suitable in the circumstances. It is likely that different reasons will be applied to various employee roles, depending on the needs of the business, as distinct from a blanket set of rules. Again, it is recommended that if employees are permitted to work remotely, a remote working agreement is implemented so as to underpin an employee’s contract of employment, highlighting that the change itself is a temporary adjustment, so that an employer may be able to revert to the original working conditions i.e. onsite working.