Flexible and Remote Working in the Financial Services Sector

Our Financial Services or Employment Law & Benefits examine the scope of the Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working. They also look at why businesses in the financial services sector need to review and adapt their relevant policies to ensure compliance with the Code.

The Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working (‘the Code’) was published in March 2024. The Code provides guidance on the right of certain employees to request flexible working for caring purposes, to include a variation in hours or days worked, or working compressed hours. It also provides guidance on the right of all employees to request remote working. These entitlements are set out in the Work Life Balance and Miscellaneous Provisions Act 2023 (‘the Act’)

Employees do not have an automatic right to flexible or remote working but instead, employers are required to consider requests made by employees. The Code is not legally binding but sets out best practice for dealing with requests. The Code can be considered in proceedings before the Workplace Relations Commission (WRC) and the Labour Court.

Anecdotal evidence would suggest there will be a push by employers in 2025 in the Financial Services sector for a return to the physical workplace. If this occurs, we anticipate an increase in requests to work flexibly or remotely. The Code provides clarity for both employers and employees and will shape how flexible and remote working arrangements can be managed in the future.

Eligibility

Under the Code, employees can request flexible or remote working from their first day of employment but must have six months of continuous service with their employer before any arrangement can start. Employers can waive this requirement. While all employees are eligible to request remote working, for flexible working, an employee must be:

• A parent (or certain persons acting in place of a parent) of a child under 12 (or 16, if the child has a disability or illness) who will be providing care to that child, or
• Providing personal care or support to another person who requires significant care or support for a serious medical reason. This includes the employee’s child, spouse, civil partner, cohabitant, parent, grandparent, sibling, or a person who resides with the employee.

Making a request

Employees must apply for flexible or remote working no later than 8 weeks before the proposed start of the arrangement. Requests should be in writing and signed by the employee and should note:

• Details of the proposed arrangement, i.e. the form of flexible working being sought or days on which remote working is being sought
• The proposed start date and duration of the arrangement, and
• Specific reasons for making the request, and for remote working, details of the suitability of the proposed work location

Employees requesting flexible working will need to provide documentation/information setting out:

• Details of the person to whom the employee’s request relates
• The employee’s connection to that person, and
• Evidence of the significant care or support required by that person, where relevant

Right to a response and records

The Code states that employers must respond to requests for flexible or remote working no later than four weeks from receiving the request. This can be extended, however, in limited circumstances. Within four weeks of receiving the request, an employer must either:

• Approve the request – and record this in a signed written agreement
• Refuse the request – and provide written notice of the reasons for refusal, or
• Notify the employee that more time is needed to consider the request

An employer who receives a request for flexible or remote working must consider the request, having regard to the employer’s business needs, the employee’s needs or the reasons for their request, and the guidance in the Code. The Code lists various factors that an employer can consider in dealing with requests. These factors include the suitability of a role/an employee for flexible or remote working.

Flexible or remote working arrangements may be subject to an initial trial period. Arrangements can be changed with the agreement of an employer and an employee and can be terminated in specific circumstances. An employer must keep a copy of signed agreements and notices. Employees should be given a copy of any agreement signed by them.

Recent case law

2024 saw five cases pursued by employees under the Act before the WRC, all of which proved unsuccessful for the employees.

In the most recent case, the employee claimed that his application for remote working was not considered seriously and that his complaint was not dealt with professionally and in accordance with the Act. The employee requested remote working 2 days per week to allow him to balance his job with caring for his child. 71 other applications were made by other employees working at the same company at the same time. The employer denied his request on the basis that the client whose project the employee was working on required workers to be on-site. The employee was told he could apply for projects suitable for remote working and which matched his skill set. The employee was reluctant to move off the project he was on, in case his employment was terminated when another project finished.

The WRC noted that in contravention of the Code, the employer took 8 weeks instead of 4 to reply to the employee’s application. However, it was noted that given the high number of requests from employees and the need to consult a client, it was inevitable that if the applications were to be properly considered, it would take some time to reach a conclusion on the total number.

The WRC found that the employer considered the application in accordance with the Act and the Code and therefore, had complied with its obligations.

Helpfully for employers, all the decisions to date have confirmed that the WRC will not look behind a decision to assess its merits but rather will assess whether the employer went through the correct process and best practice as set out in the Code and the Act.

Top tips for employers

Employers in the financial services sector should review and adapt their flexible and remote working policies to comply with the Code along with Irish working time and health and safety legislation. Employers should ensure that:

1. Requests made by employees are dealt with within the timeframes in the Code
2. Appropriate records are retained, and
3. Employees are not penalised for exercising their rights

We have extensive experience advising clients in the financial services sector on all aspects of the employment relationship, including requests for flexible and remote working. For more information and expert advice, please contact a member of our Financial Services or Employment Law & Benefits teams.

The content of this article is provided for information purposes only and does not constitute legal or other advice.