Remote Working – the new Code of Practice and what you need to know

A right for employees to request remote working arrangements has come into force following the publication of the long-awaited Code of Practice on the Right to Request Remote Working (the Code). The purpose of the Code is to provide guidance to employers and employees on how to make and handle requests for remote working arrangements.

1.    RIGHT TO REQUEST FOR REMOTE WORKING

An employee can request remote working from their first day in a new role but must complete a minimum of six months continued employment with their employer before an approved arrangement can start.

The employee should submit their request for remote working as soon as possible but not later than 8 weeks before the proposed start of the remote working arrangement.

The request must be in writing, signed by the employee and should include the following details:

• Detail of the remote working arrangement e.g., how many days and which days
• The proposed start date and if applicable, the end date of the arrangement
• The reasons for requesting remote working

The Code gives of examples of reasons for requesting remote working which include but are not limited to:

• Reducing commute time and carbon footprint
• Quality of life outside of normal working hours
• Personal or domestic circumstances
• Neuro diversity or special medical needs or circumstances which would favour a quiet working environment or facilities not always available in the office.

The application must also include details of the proposed remote working locating and information regarding the suitability of the proposed location, including the following:

• The suitability of the work station
• The distance between the propose remote workplace to the employers' place of work  
• A commitment to ensure that company data and intellectual property is secured
• An agreement to comply with the employee obligations with the Safety Health and Welfare at Work Act 2005
• An agreement to a risk assessment
• An agreement to demonstrate compliance with policies and procedures such as Data Protection, Data Security, Confidentiality, IT and Social Media
• The availability of relevant technical equipment
• A confirmation that the employee has adequate and secure internet access

An employee may be asked for additional information that the employer may reasonably require in relation to the request.

2.    RESPONSE TO A REMOTE WORKING REQUEST

An employer must respond to the request as soon as is reasonably practicable but not later than 4 weeks after receiving the request. This period can be extended to 8 weeks if the employer experiences difficulty  in assessing the viability of the request.

Within those four weeks, the employer must:

• Approve the request and document it in a written agreement setting out the details of the agreed arrangement, or 
• Refuse the request in writing, informing the employee that the request has been refused and the reasons for the refusal, or
• Inform the employee that more time is needed to assess the viability of the request.

3.    CONSIDERING A REMOTE WORKING REQUEST

The Code explains that an employer who receives a request for remote working must consider the request having regard to the businesses' needs, the employees' needs and the requirements of the Code in relation to considering a request.  

The Code sets out a non-exhaustive list for factors that may be relevant to the employer when considering a request for remote working. These include:

• The type of work the role entails
• The employee's key duties
• Whether the role requires a high degree of manual work
• Does the role include tasks that must be performed on site
• Does the role require face to face meetings with clients, customers or other employees on site at other locations
• Do any health and safety issues arise if activities are taken remotely

The employer may also consider the suitability of the employee for remote working. The WRC has also provided a helpful non exhaustive list of matters that may be relevant such as:

• Assessing whether the employee has the necessary IT skills,
• The level of supervision they require to complete their task,
• Whether they are subject to an extended probationary period or a performance improvement plan
• Whether the employee is subject to a training program or apprenticeship which requires supervision

An employer should consider a request for remote work in an objective, fair and reasonable manner,

The Code states that where an employer cannot approve the remote working arrangement then the parties should consider alternative arrangements if possible.

Remedies

If an employee believes their request has not been considered in line with the Code they can refer the matter to the Workplace Relations Commission (the WRC) for adjudication. The WRC cannot assess the merits of the request but can look at the procedure that led to the refusal.  This section of the Code is likely to be cited by employers claiming that employees are challenging the merits of the decision as opposed to the decision making process itself. The WRC can award compensation to an employee if the employer has not complied with the procedures set out in the Code.

Next Steps

Most employers will already have procedures for addressing requests for remote working. They should now check that their procedures comply with the Code of Practice, in particular they should bear in mind the requirement to respond to a request within 4 weeks and that the reasons for refusing a request must be provided in writing. Employers should also consider renaming any existing remote/flexible/hybrid policies as a Work-Life Balance policy to be consistent with the wording used in the new Code.

For more information, please contact Paul Gough or your usual contact on the Beauchamps employment team.