Striking the Balance? Significant Step for Work Life Balance

by Denise Moran, Senior Associate, Employment, Pensions and Benefits Group at Matheson LLP

Last week, the much anticipated Work Life Balance and Miscellaneous Provisions Bill 2022 (the “Bill“) was passed by both Houses of the Oireachtas and is with the President to be signed into law. A commencement order will then be required to bring the provisions of the Bill into operation and this is expected to be prioritised in the first half of this year.

This legislation introduces a statutory right for employees in Ireland to request remote working arrangements. However, where the majority of employers have already implemented hybrid working policies to cater for the return to work post-pandemic, the reality in practice may be that few employees will need to rely on this statutory basis. While the Bill may, therefore, be lagging behind the market, its provisions (and those of the awaited Code of Practice to supplement the Bill) will no doubt be welcomed by employers looking to put a more consolidated shape on their approach to hybrid working.

The Bill also introduces the provision of additional family leave entitlements for employees, reflecting the ongoing legislative commitment to diversity, equity and inclusion (“D, E & I”) in the workplace at Irish and European level. This commitment also continues to be a board-level agenda item for businesses as an important component of an organisation’s ESG strategy and a fundamental tool to attract and retain key talent, particularly female talent.

So what are the core elements to be aware of?

Right to Request Remote Working

Originally, the draft scheme for the Right To Request Remote Working Bill 2022 (the “Draft Scheme”) was published amid great fanfare in early 2022 against the backdrop of the large-scale return to the “in-person” workplace attendance following the lifting of the Covid-19 restrictions. Significant media focused incorrectly on the proposed legislation as, somewhat controversially, creating a right to remote working, as opposed to a right to request remote working. That fanfare quickly turned to criticism when it was clear that the Draft Scheme had no teeth and employers could effectively rely on very broadly defined grounds, 13 in total, to refuse any such request to work remotely. The Government subsequently scrapped the standalone Draft Scheme and incorporated a revised right to request remote working into the Bill which could, arguably, attract the same criticism.

What does the Bill provide?

Under the Bill, employees who have six months’ continuous employment will be entitled to request a remote working arrangement. The request must be made in writing and include details of the proposed remote working arrangements, the commencement date (which must be at least eight weeks after the date on which the request is made), any applicable expiration date, reasons for requesting such an arrangement and the details and suitability of the proposed remote working location.

What obligations are on employers in managing such requests?

Employers will be required to consider the needs of both the employee and its own organisation, together with the Code of Practice (which has yet to be published by the Workplace Relations Commission (the “WRC”)) when responding to such a request.

Employers must approve or refuse a request within four weeks of receipt, confirming the full details of the arrangement or setting out the grounds for the employer’s refusal. The four weeks can be extended by up to eight weeks, on notice, to allow the employer to further assess the viability of the request.

Although employers are required to provide the grounds for any refusal, there is no scope for the WRC to consider the merit, rationale or reasoning for an employer’s decision or justification to refuse any such request. An employee’s inability to challenge their employer’s grounds for refusal through recourse from the WRC is likely to be a source of frustration for employees operating in more traditional workplace settings where hybrid policies are not the norm. However, in buoyant labour markets, granting an employee’s request to work remotely may be an easy concession to make for employers who are consistently looking to attract and retain top talent.

The Bill also provides employers additional flexibility via the right to terminate any remote working arrangement if such is having a substantial adverse effect on the operation on the employer’s business or, crucially from an employer’s perspective, where the employer has reasonable grounds for believing that the remote working arrangement is being abused by the employee. Again, there is no recourse to the WRC for challenging the merits of such a decision.

Breaches of the technical requirements to manage an employee’s right to request remote working could attract a potential award of up to four weeks’ remuneration or a direction by the WRC to comply with the requirements.

Right to Request Flexible Working Arrangements for Caring Purposes

Reflecting lawmakers’ continued commitment to increasing the participation of women in the labour market and encouraging a more equal sharing of family related leave between men and women, the Bill provides for the right of employees to request flexible working arrangements for caring purposes.

What does the Bill provide?

This new leave will be for employees who are relevant parents (as defined in the Bill) or who provide personal care or support to a person specified in the Bill, including the employee’s spouse, civil partner, child, parent, sibling or a person who resides in the same household as the employee. In order for an employee to request this type of leave, the affected person must be in need of significant care or support for a serious medical reason where, owing to the person’s disability, injury or illness, he/she requires such care or support that includes the presence of the employee at the place where the person is. An employer may request relevant evidence of the serious medical reason, such as a medical certificate.

What obligations are on employers in managing such requests?

Employers will be required to consider the needs of both the employee and its own organisation when responding to such a request. In order for an employee to request a flexible working arrangement for the care of a child, the child must be less than 12 years or less than 16 years if the child has a disability or long-term illness.  The remaining eligibility criteria for requesting such flexible working arrangements are very similar to that which apply to the right to request remote working set out above, including in respect of the employee’s requisite service, request and response timelines and flexibility in respect of terminating the arrangement.

Again, there is no scope for the WRC to consider the merit of an employer’s decision to refuse an employee’s request or to terminate the arrangement where it believes that the arrangement is having a substantial adverse effect on the business or is being abused by the employee. However, the WRC can make an award of up to 20 weeks’ remuneration where the employer breaches its obligations in respect of managing such a flexible working request. This higher award (compared to that which applies where an employer fails to manage a remote working request in accordance with the Bill) reflects the ongoing legislative commitment to ensuring that each workplace prioritises D, E & I.

Unpaid Leave for Medical Care Purposes

The Bill also provides employees with five days of unpaid leave in a 12 month period to provide significant care or support for a “serious medical reason” for a person that is in a specified relationship with the employee, including their spouse, civil partner, child, parent, sibling or person who resides in the same household as the employee.

Paid Domestic Violence Leave

The introduction of this new leave for victims of domestic violence provides employees with five days of paid leave. This form of leave will be paid by the employer at a daily rate which is to be determined by regulations (which are yet to be enacted) to enable the employee to seek medical attention, access legal advice and engage with other specialist support services.

Enhanced Breastfeeding Rights

The Bill extends the period during which an employee who is breastfeeding is to be facilitated from 26 weeks to 104 weeks following the child’s date of birth by reduced working hours or paid time off for breastfeeding purposes. The Bill also provides for this entitlement for transgender men who have given birth and who are breastfeeding.

Key Actions for Employers – Take a Wait and See Approach for Now

Once the Bill is signed into law, many employers will wait for the additional detail to be provided via the requisite WRC Code of Practice (which is expected to issue within three months) before reviewing and updating their leave policies, family friendly policies and their remote / hybrid / flexible working policies. This Code will provide guidance for employers on how best to address requests for remote working and detail the obligations on both employers and employees. In particular, we expect to see it include some parameters on an employer’s right to refuse a remote working arrangement. Further clarity is also expected around the extent of employers’ duties around data protection concerns for remote workers as well as the balance between working and rest time for hybrid workers.

About the author

Denise Moran is a Senior Associate in Matheson’s Employment, Pensions and Benefits Group and is based in the Cork office. She advises domestic and international clients across a broad range of sectors on all aspects of contention and non-contentious employment law. Denise specialises in guiding employers through complex and sensitive HR processes including disciplinary and grievance processes and investigations into bullying, harassment and whistleblowing allegations. She has also represented clients before the WRC, Labour Court and the civil courts in complex employment litigation.