What rights do employees have to request flexible or remote working?
Employees can submit a flexible working or remote working request from their first day of employment, but they must have reached six months’ continuous service before the start of any period of flexible/remote work.
Additionally, flexible (not remote working) requests can only be made by employees who are:
- a parent or acting in loco parentis to a child under the age of 12, or a child with a disability under the age of 16 and who is /will be caring for the child; or
- providing / will be providing care to someone living in the same household who requires significant medical or support for a serious medical reason.
What procedure must employers follow when responding to a request?
Employers must respond as soon as reasonably practicable and by no later than four weeks, unless extended as set out below, by either:
- approving the request (including an agreement detailing the arrangement, including the start date and duration, signed by the employer and employee);
- refusing the request (by providing notice in writing stating the reasons for the refusal); or
- if there is difficulty assessing the viability of the request, informing the employee that more time is needed by providing notice in writing stating the length of extension required (up to eight weeks in total).
Can an employer change or terminate a flexible or remote working arrangement?
Changes can be agreed, before or after an arrangement has commenced (such as postponing or varying the arrangement).
Termination of an arrangement can occur where employers determine it would have / is having a substantial adverse effect on the operation of the business, profession, or occupation for certain specified reasons. Employers should inform the employee in writing of the reasons for terminating the arrangement and give the employee seven days to make representations against the termination, if they wish to do so.
Termination can also occur where employers have reasonable grounds for believing the arrangement is not being used for the purpose for which it was approved, or if the employee is not fulfilling all the requirements of the role.
What potential penalties could employers face?
Employers must keep a record of approved flexible working and remote working arrangements for three years, or else risk being fined up to 2,500 EUR.
Employees are also protected from being penalised for exercising their right to request flexible/remote working. Although the Code is not binding on employers and therefore a failure to comply with the Code is not an offence, the Code is admissible in evidence in any proceedings.
So, what should employers do now?
Employers should review the published Code of Practice and amend any internal policies which reference flexible and remote working. In addition, employers should consider whether any template contracts need updating. If you need any support with this, or would like any further information, please get in touch with a member of the MDR ONE team.
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