The WRC has issued its first decision in relation to the right to request flexible working and the right to request remote working which is provided for in the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”). In the decision the adjudicator also gave helpful guidance on the Code of Practice on the Right to Request Flexible Working and Right to Request Remote Working (the “Code”) which was published by the WRC earlier this year. See our article review on the requirements of the Code here.

From the outset it is important to note that neither the Code nor the Act give a legal right to flexible or remote working. The Act provides for a right to request flexible or remote working, that an employer must consider that request and provides statutory timelines in which those requests should be considered. The Code sets out steps to assist employers and employees in navigating requests for flexible and remote working, in compliance with the Act.

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Background

In this case, Ms. Karabko (the “Complainant”) was employed by TikTok Technology Limited (the “Respondent”) from January 2022. In her contract of employment, her normal place of work was the Respondent’s office in Dublin 2. Due to the ongoing pandemic, the Complainant initially worked fully remotely, which was provided for in her contract of employment.

In June 2022, the Respondent introduced its Return to Office (“RTO”) policy. The RTO policy provided for employees to attend at the office on a 2-day a week basis whilst encouraging employees to attend on site 3 days per week. The Complainant was permitted, on a discretionary “individual exception”, to work from home for all of 2022. In January 2023, the Respondent announced that the option for “individual exceptions” would cease from March 2023.

The Complainant continued to work fully remotely which culminated in a disciplinary process and verbal warning being issued. On 11 March 2024, following publication of the Code, the Complainant submitted a request to work remotely on a full-time basis. As part of her formal request, the Complainant provided her reasons, which included a lack of suitable accommodation in Dublin for her and her cat, reduction of her commute and improvement in quality of life.  

The Respondent, complied with the timelines set out in the Act in its response to the Complainant and following consideration of the request, refused the request and set out the reasons for the refusal.

The Complainant issued correspondence to the Respondent stating that her needs had not been considered and alleging that the Respondent failed to consider her request in an objective, fair and reasonable manner. Following from this, a meeting took place where the reasons for the Respondent’s refusal were discussed in detail. The Complainant was also offered the option to raise a grievance, which is provided for in the Code, which was not pursued by the Complainant.

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Complainant’s Case

The Complainant’s position was that the Respondent did not consider her request in line with the Code or the Act. The Complainant referred to the provisions of the Code which state that an employer must consider a request having regards to their own needs, the employee’s needs and the requirements of the Code

The Code also provides that:

An employer should consider a request for RW in an objective, fair and reasonable manner. An employer may consider both the suitability of the role for RW as well as the employee’s suitability to work remotely. In reviewing whether a role or an individual employee is suitable for RW, it is important that both are reviewed in an objective, fair and reasonable manner.

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The Complainant submitted that the Respondent has only considered its own business needs and had disregarded her needs and the reasons for her request. In short, the Complainant argued the Respondent had not considered her request in an objective, fair and reasonable manner in accordance with the Code.

The Complainant challenged the Respondent’s reasoning for the rejection to include its position that team collaboration and knowledge sharing had to be performed from the office and also that they had provided enough notice for the Complainant to find accommodation in Dublin. The Complainant argued that she did not believe a grievance procedure would be effective in her case.

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Respondent’s case

The Respondent’s position was that the Complainant’s claim was not well founded. It was argued that the Complainant’s request was considered, and responded to, by the Respondent in accordance with its obligations under the Act.  It was submitted that the Complainant was in effect seeking to have the merits of the Respondent’s decision to refuse the request examined by the WRC, when doing so is expressly prohibited by Section 27 (6) of the Act, as confirmed by the Code, which states:

Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to [remote work]. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision.

The Respondent argued that in any event it had “diligently assessed the Complainant’s application for fully remote work in good faith and made a decision for valid objective reasons, having weighed up both the needs of the business and the needs of the Complainant”.

The Respondent submitted that the fact the Complainant’s request was not granted does not give rise to an actionable breach under the Act.

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WRC Decision

The Adjudication Officer noted that one of the purposes of the Act is to “provide for the entitlement of employees to request remote working arrangements” and practical guidance on how to handle those requests are set out in the Code. The Adjudication Officer was clear that her remit was strictly limited to assessing whether an employer considered a request for remote working in line with the Act and in accordance with the Code of Practice.

The Adjudication Officer stated that there were three distinct duties on an employer who receives a remote working request.

‍First Duty: Section 21(1)(a) of the Act obliges the employer to consider the request having regard to its needs, the employee’s needs and the requirements of the Code of Practice. Two members of the Respondent’s staff met, and according to their evidence, considered the request in detail together with the Respondent’s business plan. The Adjudication Officer found that the Complainant’s request was treated very seriously and the Respondent took all relevant factors into account.

Second and Third Duties: Section 21(1)(b) of the Act obliges the employer to either approve a request for remote working or notify the employee in writing of its refusal to approve the request within four weeks of the receipt of the request. Section 21(2) of the Act provides for an extension of the consideration period of up to eight weeks. The Adjudication Officer found that the Respondent had complied with the prescribed timelines.

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Takeaway for Employers

The above case is helpful in that it reaffirms that the Act and Code provide the right to request remote working, as opposed to the right to work remotely. However, employers should also ensure that they are able to evidence that they have considered any request and have complied with the prescribed timelines, for this reason we would encourage all employers to document their decision making process. It is important for employers, if they have not done so already, to ensure that they have a policy on remote and flexible working that complies with the Code, as if they do not, and an employee takes a claim under the Act, it will be read against the employer.

For more information or assistance with the implementation of the Code, please contact Caoimhe Heery, Claire McDermott or any member of the Flynn O’Driscoll Employment Team.

This article is current as at 21/08/2024 and is provided for information only and does not constitute legal advice.

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