Home Truths About New Remote Working Rules
As the Work Life Balance and Miscellaneous Provisions Act 2023 comes into force, Robert O’Brien looks at what the law means for employers and employees
The Work Life Balance and Miscellaneous Provisions Act 2023 has come into effect and provides employees with the right to make a statutory request for Remote Work
(RW). The Workplace Relations Commission (WRC) has issued a Code of Practice as to how this process should work, both for the individual and their employer. While failure to follow a code is not an offence, the Act provides that in any proceedings a Code of Practice shall be admissible in evidence.
Remote Working is an arrangement whereby some or all of the work ordinarily carried out by an employee under a contract of employment is provided at a location other than at the employer’s place of business. A request for RW must be in writing and must include how many days and which days requested, the proposed starting and end date of the arrangement, and the reasons for requesting RW.
The WRC code explains: “This is the employee’s chance to set out to their employer how they are confident that they can continue to perform their role remotely to the required standard and their individual specific reasons for making the request for RW.” Examples of reasons for requesting RW could include but are not limited to reducing the daily commute and carbon footprint; optimising quality of life outside normal working hours; personal or domestic circumstances; and neurodiversity or special medical needs which require a quiet working environment.
The employee application must also include details of the proposed RW location, workstation details, agreement
to cooperate with employer health and safety obligations, agreement to demonstrate compliance with data security, confidentiality etc, and confirmation of adequate and secure internet connection.
An employer who receives a request for RW must respond not later than four weeks after receiving the request. In the response, the employer must approve the request, refuse the request and provide reasons, or seek more time to assess the viability of the request.
The WRC advises that the RW request should be assessed having regard to the business needs, and the employee’s reasons for requesting RW. “An employer should consider a request for RW in an objective, fair and reasonable manner. An employer may consider both the suitability of the role for RW as well as the employee’s suitability to work remotely,” the WRC code explains
In reviewing whether a role is suitable for RW, the employer may consider type of work, employee’s key duties, manual work, and whether the role includes tasks that must be performed or are more efficiently performed onsite. Other factors the employer may consider are whether the role requires access to equipment or data that are only available on-site, and whether the role require face-to-face engagement with clients, customers or other employees.
Employers can also consider whether remote working will affect operations taking into account the number of other employees currently on approved leave and/or on approved remote working or flexible working arrangements.
In considering a request for RW, an employer may also consider the suitability of the employee, considering issues such as employee’s IT skills, competence to work with minimal supervision, performance standards, probation, live record of disciplinary action, timekeeping, and training or apprenticeship programme.
An employer can terminate an approved RW arrangement where this is “a substantial adverse effect on the operation of their business, profession or occupation”. Under the Act, neither the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to RW. This means that they cannot look behind the merits of the decision — they can only look at the process that led to the employer’s decision.
Where there is a dispute, the WRC Adjudicating Officer may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding four weeks’ remuneration to be paid by the employer.