Want to work from home? Here are the rules governing your employer’s reaction

The post-Covid battle has been on to determine the future of the workplace. As the pandemic shutdowns eased, some employers have tried to get their staff back to the office all, or most, of the time, while others have sought to formalise the hybrid working future, seeking a middle road. In many cases this has settled, predictably, on three days in the office and two working remotely. Now, new guidelines from the Workplace Relations Commission (WRC) provide a framework under which employees can exercise their statutory rights to apply for remote or flexible working. The big question is how this will work in practice – and how the WRC or Labour Court will react when disputes come to be adjudicated.

1. The guidelines: Following the enactment of the 2023 Work Life and Balance Act, the WRC was asked to provide guidelines on how requests for remote or flexible working should operate in practice. Flexible working applies when a person has caring responsibilities for children – under 12, or under 16 in the case of disability or illness – or other older family members. A similar framework is set down for remote working requests in terms of the basic rules which apply through the process.

In terms of remote working, the guidelines set down a clear framework for employees wanting to make a request and employers having to respond. Employees have to make the request at least eight weeks in advance of the proposed starting date and employers have four weeks to respond – to say yes, no, or give reasons why they need more time to assess the request.

Employees need to outline what type of remote working arrangement they are seeking and why. Sample reasons quoted in the document are a desire to cut their daily commute and carbon footprint, to optimise quality of life, or specific personal or domestic circumstances or medical needs. Interestingly, the WRC guidelines say that this is the employee’s chance to put the case that they can still do their job to the required standard in a remote location. The application must also confirm that the employee has the required workstation at home and internet connections.

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[ Remote working Q&A: How do I apply and what are my rights? ]

There are also obligations on employers. Within four weeks of getting the request, they must accept it, refuse it and give reasons why, or provide notice in writing that more time is needed. Employers are expected to take into account not only their own needs but also those of the employee and act in an “objective, fair and reasonable” manner.

Acting contrary to the code is not an offence, but could be used against the employer in the event of a case coming before an adjudication officer at the WRC, the Labour Court or the courts. The code contains a list of sample issues which could be considered in looking at whether a role is appropriate for remote working – such as the type of work, access to technology, the requirement to interact with customers and so on. Interestingly an employee “may consider the suitability of the employee” as well and issues such as their past performance, their IT skills and ability to work on their own, their past attendance record and so on can be part of this.

An onus is put on both parties to try to solve any dispute in this process through trying to find a middle way. There are also rules set down on how a remote working arrangement might be terminated, what happens when it is abused, how records are kept and how concerns raised on either side are dealt with. In short, both employers and employees need to read these guidelines.

2. What do they mean? During Covid-19, companies and their employees had to react “on the fly”. Remote working was seen to work reasonably well, though as time has gone on, concerns have grown about the impact on collaboration and issues such as bringing in new employees and training. Internationally, hybrid working, a mix of in and out, appears to have emerged as the formula – a middle way between totally remote and in the office all the time – and in many cases this has drifted towards working three days in work and two days at home. But this is now being formalised in company policies – and here now in national guidelines.

Increasingly, workplace arrangements are becoming more formal, according to Jennifer Cashman, partner with law firm RDJ and the code has guidelines on the issues a company needs to cover, such as what type of arrangements will be considered, requirements on employees to be flexible, working hours and the working environment and whether they are prepared to consider people working outside Ireland, which can raise awkward tax and legal issues. Companies also need to consider how they will manage the sensitive personal data which employees may give with an application, she added.

The code is “good news for employees”, according to Caroline Reidy of the HR Suite, employment consultants, as it gives them a clear guide on applying for remote working and obliges their employer to make a timely response and to give a reasoned decision. Hybrid is “the future of work”, she said and the code provides a framework for implementing this.

While hybrid arrangements are now commonplace in Irish businesses, both Cashman and Reidy say some companies have sought a full-time, or near full-time, return to the office. The new legislation, together with the code of practice, now obliges them to consider requests for remote working.

According to Cashman, it will be interesting to see how adjudicators at the WRC – the typical first place for a dispute to go – deal with cases that come before them and how the new system actually operates. She points out, however, that under the code, the WRC and the Labour Court can consider the process used by the company in dealing with a request, but not the underlying merits of the employer’s argument.

[ Compensation set for workers whose remote working requests are not reasonably considered ]

In other words, if the company puts forward particular business reasons why a request has been turned down, then neither an adjudication officer of the WRC nor the Labour Court can look behind the “merits” of these arguments. This part of the code is likely to be regularly quoted in disputes, she says. It does seem to give leeway to employers, if they do follow the process and outline specific reasons why a request is turned down. Employees, it seems, can object if the company does not follow the correct process, but cannot question the business reasons given, provided – presumably – they are reasonable.

It will also be interesting to see how decisions emerge in cases where employees have been working remotely since Covid-19 but their employer wants them back more regularly in the office, perhaps instructing them to return and making them apply to regularise the arrangement currently in place.

3. The future of work: There can be no doubt that Covid-19 has been a turning point in how people work. As a major research project by US research and consultancy company Gallup concluded last year – having surveyed tens of thousands of “remote-capable” employees – “The future of the office has arrived: it’s hybrid”.

One comparison tells a lot of the story: “In 2019, 60 per cent of remote-capable employees spent their week working fully on-site, whereas that figure has fallen to just 20 per cent in 2023.” Looking at it another way, around 40 per cent of US employees covered by the survey have shifted entirely from on-site to either hybrid or working remotely.

And the dominant pattern is hybrid – with the average coming in at 2.6 days a week in the office – and the last year has seen a shift towards a 3 days in and 2 days out model. Gallup believes it unlikely that everyone will return to the office five days a week, or that fully remote work will become the “new normal”. Not surprisingly, Tuesday, Wednesday and Thursday are the main office days.

A significant number of companies have downsized their office space and simply could not cope if everyone showed up at the office on the same day

The research points to a balancing act for employers – they need to set a remote working strategy, co-ordinated to ensure it works, but also provide some flexibility for employees and communicate that they are “trusted”. And if particular days to turn up are mandated, employers need to give a reason why – for example team meetings.

Irish employers and employees are also trying to navigate this new world. According to Cashman of RDJ, talent shortages remain a factor, putting pressure on employers to be flexible, for example in relation to new graduates in areas like professional services or parts of tech, where the decision of many to spent a year or two overseas has created shortages. According to Reidy of the HR Suite, companies trying to get people to attend full-time may run into problems attracting or retaining staff, with flexibility being a key requirement of skilled employees in many cases.

And there is another factor. A significant number of companies have downsized their office space and simply could not cope if everyone showed up at the office on the same day. For them, at least, the future is most definitely hybrid.