Will employers have to be flexible?

Key Contact: Patrick Walshe – Partner

“Remote working” entered the vernacular as a consequence of the Covid-19 pandemic – and the implementation of remote working in workplaces across Ireland continues to be a topic of debate, and sometimes controversy, between employers and employees.

That debate will be heightened once the Right to Flexible Work Bill, 2022 becomes law.

“Flexible work” is distinct from “remote work”; the latter does not involve any change to core terms and conditions (including hours of work) except for working location – in other words, an employee who is remote working is performing identically to the way they do in the office, just at home or elsewhere.

“Flexible work” is quite a different beast – it includes remote working, but under the current plans will also include arrangement allowing the employee “to choose when to start and to end periods of work during the working day, within limits set by the employer“.

In other words, flexible working is designed to allow an employee a considerably greater degree of flexibility over when the work is done – and the intention is to allow the employee to determine when to work and, obviously, when not to work during the day. This will allow an employee to fit other activities around work.

This may well present challenges at management level – many employers found it difficult enough to get used to remote working. In addition, the new rules in relation to flexible working could be on the statute books in a relatively short space of time.

Perhaps the most interesting question is the extent to which an employer can resist an employee’s request for flexible working. There are certain crucial points for employers to note in this context, beginning with the fact that employers, under the current plans, must respond to a flexible work request within four weeks – a relatively short period of time.

More significantly, the degree to which an employer can refuse a request is going to be subject to pretty tight controls. The legislation does provide that a request can be refused in relatively common sense circumstances (for example, where the employee’s plan would adversely affect the quality of work).

However, and notably, the employee will have the ability to challenge refusal by bringing a complaint to the WRC. That body can award compensation – but it can also, significantly, direct an employer to approve a request for flexible working.

This provision alone means the new regime will have teeth – the WRC is likely to take a forensic approach to requests and if an employer cannot satisfy the tribunal that there is a sound basis for refusing, requests may well be granted. It won’t be surprising if the WRC expects employers to have a good justification for refusal.

Another interesting proviso in the bill is that evidence that an employee worked remotely during Covid can automatically be relied upon to support a flexible work request – an additional weapon in an employee’s arsenal.

This legislation may well have a significant impact on the way in which we work. It’s also notable that the Bill is not the only movement we are going to see in this space in the foreseeable future – Ireland must more-or-less simultaneously adopt an EU directive on worklife balance.

This legislation is different to flexible working legislation – it is primarily designed to allow parents/carers of children to work flexible hours to care for those children. However, the fact both pieces of legislation will arrive at approximately the same time means employers need to start thinking about these issues now – and be ready to deal with requests.

 

For more information in relation to this article please contact partner Patrick Walshe.

 

News and insights

Peter Crawford

Peter Crawford

It is with great sadness that we announce the unexpected and tragic passing of our colleague and dear friend Peter Crawford. Peter was with the firm for almost ten years, joining as an intern and most recently becoming a senior associate. He was an excellent lawyer...

read more
Share This