1. Introduction
The Work Life Balance and Miscellaneous Provisions Act 2023 introduced a statutory right to request remote working, alongside other work-life balance entitlements. The right to request is significant but procedural: it does not confer a right to remote working as such, but rather a right to make a structured request and to have that request considered by the employer.
This article addresses the statutory right to request remote working, the procedural framework, and the practical implications for both employers and employees.
2. Legislation and Case Law
Section 20 of the Work Life Balance and Miscellaneous Provisions Act 2023 provides that an employee may submit a written request to his or her employer for an approved arrangement to undertake remote working. The request must comply with the requirements of Section 21.
Section 21 sets out the form and content of the request. The request must be in writing, must set out the details of the remote working arrangement requested (including the proposed duration and any associated arrangements), must set out the reasons for the request, and must include a self-assessment of the proposed remote location.
Section 22 imposes obligations on the employer in considering the request. The employer must consider the request, having regard to the needs of the employer and the employee and to the requirements of the WRC Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working.
Section 23 sets out the employer’s response. The employer must respond in writing within four weeks (extendable by up to a further eight weeks). The response must approve the request, propose an alternative arrangement, or refuse the request and set out the reasons for refusal.
Section 24 provides for complaints to the WRC. The remedy is compensation of up to 20 weeks’ remuneration. The Adjudication Officer’s role is limited to the procedural compliance with Sections 21 to 23; the Adjudication Officer cannot review the merits of the employer’s decision.
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3. Decision
Early WRC decisions under the right to request regime have addressed the procedural aspects of the right. The Adjudication Officer’s role is supervisory rather than substantive. The decisions emphasise the limited nature of the right.
Where the employer has complied with the procedural requirements – receiving the request, considering it, having regard to the Code of Practice, and providing a written response with reasons – the complaint will not, in general, succeed. The merits of the decision are not, in themselves, within the Adjudication Officer’s jurisdiction.
Where the employer has failed to comply with the procedural requirements – by failing to consider the request, by failing to have regard to the Code of Practice, or by providing inadequate reasons – the complaint may succeed, with compensation reflecting the procedural failure and any consequent impact on the employee.
The Code of Practice published by the WRC provides guidance on the matters that the employer should consider, including the suitability of the remote location, the impact on operations, the technological requirements, and the implications for management and supervision.
4. Takeaway
For employers, the right to request remote working is procedural rather than substantive, but the procedural requirements should be observed. The employer should have a clear policy for the receipt, consideration, and response to requests, aligned with the Code of Practice.
The employer’s response should be in writing, within the statutory time limit, and should set out the reasons for the decision. Where the request is refused, the reasons should be substantive and should reflect the matters identified in the Code of Practice.
For employees, the right to request is a starting point rather than an endpoint. The well-prepared request, with a careful self-assessment of the proposed location and an articulation of the reasons, is more likely to receive favourable consideration.
Practitioners should note that the merits of the employer’s decision are not, in general, reviewable by the WRC. The advice to employees is to focus on the procedural protections and to make the strongest possible case in the request itself.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
