A number of recent rulings from the Workplace Relations Commission have brought some clarity to the right to request flexible working that was established by the Work Life Balance Act 2023 and came into effect last March when the WRC published its code of practice on the issue.
The act requires employers to treat requests from employees for flexible working in an “objective, fair and reasonable manner”. It would appear from the decisions that the WRC has adopted a minimalist position in terms of interpreting these obligations and essentially takes the view that as long as the employer has followed the procedures set out in the code it can refuse the request if it wishes.
This is not particularly surprising as it was the direction of the legislation. Employer representative bodies had made it clear that their members did not support a legal right to flexible working. Much has changed since the legislation was first promised in the wake of the Covid pandemic. Many employers have instigated regimes that require employees to be in the office for a number of days each week and more recently some larger firms are mandating full-time attendance.
Ireland currently enjoys next to full employment, certainly in the technology and services sectors where flexible working is most feasible. Consequently, employees still have some leverage. If their employer will not accede to their request for flexible working, they have a reasonable chance of obtaining flexible work elsewhere. A downturn in the jobs market might change this balance.
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Given that a generalised return to full-time working in the office looks unlikely, give and take is required from both sides. In this context, the Department of Social Protection’s recent move to require employees to return two days a week to the office – or three days for higher grades– seems reasonable. It is to be the subject of consultation after objections from the Fórsa trade union. But these are the kind of arrangements now common in the private sector and they involve much greater flexibility for employees than existed pre-Covid.
