Barry Crushell

The Work Life Balance and Miscellaneous Provision Act 2023 came into effect on 4 April 2024 and originally aimed to increase the participation of women in the labour market and the shared take-up of family-related leave and flexible working. This development, in tandem with the advent of Covid-19 and the rapid transition to remote working, has transformed the way many of us work.

The Act grants employees a statutory right to request flexible or remote working arrangements.

The Act was supplemented by a Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working 2024. The purpose of the Code was to provide practical guidance to both employers and employees as to the steps that may be taken for complying with one or more provisions of Part 3 of the Act, and also with Part IIA of the Parental Act 1998-2023, regarding requests for flexible working arrangements for caring purposes.

The Act establishes formal procedures for the submission, evaluation, and modification of such requests, ensuring that employers make impartial, consistent, and equitable decisions. It also provides a structured framework for resolving any disputes that may arise during the request process. 

While non-compliance with the Code is not considered an offence, both Section 20(9) of the Workplace Relations Act 2015 and Section 31(9) of the Act provide that the Code may be admissible as evidence in proceedings before a Court, the Labour Court, or an Adjudication Officer of the Workplace Relations Commission (WRC).

On foot of the anniversary of the Act and Code, there is an opportune moment to reflect upon their application before the WRC.

In this article, we review each of the decisions issued by the WRC in the past year on foot of complaints seeking adjudication under the Act.

Alina Karabko v TikTok Technology

In the case of Alina Karabko v TikTok Technology Ltd (ADJ-00051600) the complainant brought a claim to the WRC under Section 27 of the Act. This matter was heard on 3 June 2024. A decision was issued on 24 June 2024.

The complainant argued that the respondent did not consider her application for fully remote working arrangements in accordance with the Act and the Code.

In particular, the complainant alleged that the respondent completely disregarded her needs when deciding on her request; and the respondent did not consider the request in an objective, fair and reasonable manner.

The respondent argued that the complainant’s claim was, in law, misconceived and/or is not well founded. In this respect, the complainant’s request for remote working was considered, and responded to, by the respondent in accordance with its obligations under the Act. 

The Adjudication Officer, Marie Flynn, determined that: “The respondent issued a decision in respect of the request in writing to the complainant on 12 April 2024 informing her that her request had been refused and providing reasons for the refusal.

“I find, therefore, that the respondent has complied with its obligations under section 21(1)(b) and section 21(2) of the Act.

“Taking all of the above into account, I find that the respondent did not breach the provisions of section 21 of the Act in relation to the complainant. I find, therefore, that this complaint is not well founded.”

Ankitumar Patel v Harcourt Technologies Ireland Limited

In the case of Ankitumar Patel v Harcourt Technologies Ireland Limited (ADJ-00052423) the complainant brought a claim to the WRC under section 27 of the Act. The matter was heard on 10 September 2024. A decision was issued on 19 September 2024. 

The complainant did not attend the hearing.

The Adjudication Officer, Valerie Murtagh, determined that: “As part of my investigation, I am obliged to hold a hearing. I am satisfied that the complainant was notified of the arrangements for the hearing. I find that the complainant’s failure to attend such a hearing was unreasonable in the circumstances.

“As no evidence was given at the hearing in support of the complaints, I conclude that the within complaints are not well-founded.”

Rafael Andrade Jorge v Centric Mental Health

In the case of Rafael Andrade Jorge v Centric Mental Health (ADJ-00051008) the complainant brought a claim to the WRC under Section 27 of the Act. The matter was heard on 13 June 2024. A decision 

A very interesting development arose in this case, wherein the complainant argued that certain legal principles affirm that contractual discretion, even if appearing absolute, must be exercised reasonably and in good faith. 

The complainant relied on a number of precedents such as Devlin v Electricity Supply Board PW 550/2011, Clarke v Nomura International [2000] IRLR 766, and Lichters & Hass v Depfa [2012] IEHC 10. Furthermore, the Code mandates a balanced consideration of both business requirements and employee circumstances. In reviewing whether a role or an individual employee is suitable for remote work, it is important that both are reviewed in an objective, fair and reasonable manner.

Accordingly, the right to request full remote working at home effectively commenced when the internal grievance procedure was initiated. That concluded in early 2024 internally and then was referred to the Commission in early April 2024. 

The complainant argued that his acceptance of a fully remote working contract of employment, was contingent upon his decision to reject an offer from another employer. On 04 August 2022, an amendment was made to the complainant’s contract. The complainant argued that the respondents are bound to honour that term, unreasonableness of the respondents’ request.

The respondent argued that the request was reasonable and for sound business reasons, highlighting that other colleagues were required to work in the office two days a week, asserting that the complainant’s monthly in-office attendance was a fair and reasonable expectation, especially in light of the prior contract amendment.

The Adjudication Officer, Brian Dalton, determined that: “Having regard to the circumstances of this complaint and the proximity of finalising of the grievance procedure and the commencement of the Code of Practice and right to Request Remote working, those reviews stand.

“I have concluded that it was reviewed in compliance with the Act and the Code, and that the Employer complied with their obligations.

“The sequence of events which was allowed in law was for the change in a term of the employee’s contract to occur which required him to be in the office 1 day a month. This was a reasonable change in his terms provided for under the contract of employment and a clear reason was given in early 2024.

“In all respects the company has met the requirements in the Act relating to assessing business needs and the employee’s needs and communicating in writing to him about the reason for not approving full remote working at home.

“The complainant’s request for restoration continued when the new code came into effect on the 7th of March 2024. However, the referral is not about the merits of the new employment term and can only be about how the decision was made to continue with the new term and communicated to him with reference to the Code and the Act.”

Maria Claudia Rocha v BNY Mellon

In the case of Maria Claudia Rocha v BNY Mellon (ADJ-00051374) the complainant brought a claim to the WRC under Section 27 of the Act. The matter was heard on 28 August 2024. A decision was issued on 24 October 2024. 

The complainant was employed by the respondent for a total period of four years, comprising two years and eight months through an agency and 14 months as a direct employee. Her direct employment commenced on 03 January 2023, and she resigned on 14 March 2024.  

The complainant faced challenges with her commute and formally requested to work remotely from home on a permanent basis from January 2023. The complainant argued that that her request was not properly processed or escalated to senior management. Despite the request being rejected, the Complainant observed that it remained active in the system until 14 March 2024.

In particular, the complainant alleged that during her tenure she experienced burnout and had numerous concerns regarding her treatment in the workplace. Finding her working conditions untenable, she ultimately resigned on 14 March 2024.

The respondent argued that since the complainant’s requests for remote work on 19 September 2023, and her subsequent request for reasonable accommodation to work from home on 31 January 2024, predated the legislation, which came into on 06 March 2024, the complainant could not avail of the Act. 

The respondents contended that they were not breach their obligation under the Act in relation to complainant’s request for remote working. 

The Adjudication Officer, Gaye Cunningham, determined that: “The complainant’s request for remote working was made over a year prior to the commencement date of the legislation.  Her request for reasonable accommodation to work from home was also made prior to the commencement of the Act. The law therefore was not in operation on the dates that the complainant requested remote working, and on the date the respondent rejected her request.

“I note the request was referred to in emails between the parties in March 2024 but by that time the complainant had resigned her position.  I find the complaint to be not well founded.”

Dienifer Taylor v Microchip Technology Ireland Limited

In the case of Dienifer Taylor v Microchip Technology Ireland Limited (ADJ-00053037) the complainant brought a claim to the WRC under Section 27 of the Act. The matter was heard on 18 October 2024. A decision was issued on 01 November 2024.

The complainant argued that she contacted her manager in January 2024 to request a transition to a three-day remote workweek, citing the strain of her daily commute, which totals 150 kilometres each way. This request was declined by her line manager.

During the hearing, the complainant confirmed that she had not made a written request to her employer to change her current remote work arrangement.

The respondent argued that the complainant did not submit a remote working request to the HR Department or in writing to her manager (who has since left the business). 

The Adjudication Officer noted that Section 21(1) of the Act does not prohibit increasing remote working or extending remote work within a hybrid arrangement. 

It is agreed between the parties in this case that no written application for a new remote working arrangement was submitted by the complainant in writing at any time in 2024. 

The Adjudication Officer, Janet Hughes, determined that: “It follows from the foregoing that this complaint cannot succeed as the employer did not receive a written application to which they would have been obliged to reply either approving the application or giving reasons in writing for rejecting the application.

“At this early stage in the development of decision making by Adjudication Officers around this legislation, it is important to note that the WRC has no role under Section 27 of the Act to decide on the merits or demerits of an application for remote working. The role of the WRC and therefore the Adjudication Officer is to ensure that the relevant processes contained in Section 21 of the Act have been followed, by both parties, basically applying in writing, replying in writing within a specified period and committing any agreement to writing.”

While there was no finding against the respondent in this case, the Adjudication Officer expressed a concern regarding the respondent’s response to the complainant. Specifically, it was noted that criticizing the complainant’s performance in a public hearing on a technical matter concerning her legal rights appeared to be an inappropriate approach. 

Additionally, the Adjudication Officer highlighted that, while the respondent indicated a corporate policy limiting hybrid work to two days of remote work per week, the legislation and the WRC’s Code of Practice suggest the necessity of a written policy that clearly outlines the procedures for requesting flexible and remote working arrangements, encompassing the rights of employees in specific circumstances, particularly for parents and carers seeking flexible working arrangements.

Javier Osorio v Cognizant Technology Solutions Ireland Limited

In the case of Javier Osorio v Cognizant Technology Solutions Ireland Limited (ADJ-00052414) the complainant brought a claim to the WRC under Section 27 of the Act. The matter was heard on 20 November 2024. A decision was issued on 02 December 2024.

The complainant, father of a 10-year-old child, articulated significant challenges in balancing his work and family responsibilities, particularly due to his wife’s employment in the hospitality sector and the resulting difficulties with childcare.

The complainant expressed dissatisfaction with the rejection of his remote working application, submitted on 10 March 2024, citing the response received by the respondents as ‘generic and lacking consideration’ for his individual circumstances, a sentiment echoed by the uniform rejection of all 72 applications.

In particular, the complainant criticised the handling of his appeal, highlighting delays and the absence of key decision-makers during critical meetings, which he viewed as indicative of a lack of seriousness and commitment on the part of the Respondents in addressing his request.

The respondent argued that the complainant’s employment contract explicitly mandated his presence at the client’s site, a condition he accepted upon employment, and noted that management had engaged with the complainant on three occasions regarding his remote working request and provided an opportunity to appeal in accordance with the Work Life Balance Act 2023. 

The respondents further argued that the “client delivery model” necessitated in-person attendance and that, despite an HR manager proposing alternative arrangements, including reassignment to a different project, the complainant declined these options, leading them to conclude that they had fairly considered his request.

The Adjudication Officer, Catherine Byrne, determined that: “I am satisfied that the complainant’s application was properly considered.  It is apparent to me that the managers who considered his request recognised his need to balance his work and childcare responsibilities.  I accept the evidence of the respondent’s witnesses that they consulted with their client to explore the possibility of remote working but that the client was unwilling to permit the employees assigned to their project to work from home. 

“I have concluded that the respondent considered the complainant’s application to work from home in accordance with the requirements of s.21 of the Act and I decide therefore, that this complaint is not well founded.”

Kenny Elliott v Bright Motor Group Bright Motor City

In the case of Kenny Elliott v Bright Motor Group Bright Motor City (ADJ-00051801), the complainant brought a claim to the WRC under Section 27 of the Act. The matter was heard on 16 September 2024 November 2024. A decision was issued on 04 February 2025. 

The complainant did not attend the hearing on the scheduled date to provide evidence. The complainant did send an email explaining that he was unable to attend due to illness and requested a postponement on these grounds. However, in the absence of a medical certificate to substantiate his condition, the Adjudication Officer determined not to grant the request for postponement.

The Adjudication Officer, Mr Breffni O’Neill, determined that: “As the complainant did not attend on the day of the hearing to give evidence in relation to his complaint, I find that this complaint is not well-founded.”

Conclusion

Many European countries, including Belgium, France, Germany, and the Netherlands, place a burden of proof on the employer to objectively justify any decision to deny remote working requests, as well as providing legal remedies to challenge such a decision. The Irish equivalents are much less robust. 

While the Act was designed to encourage an uptake of working from home arrangements within the Irish workforce, the caselaw is clear that no additional legal obligations have been placed on employers to implement remote working arrangements, but simply consider them when requested. In many respects, the Act is somewhat a ‘toothless tiger’, in that there are no real consequences for any employer who refuses a remote working request, so long as they can convince an adjudication officer that due consideration was given.

In those cases that were determined by the WRC, the operational and commercial objectives of the employer consistently trumped the personal needs of the employee. Questions need to be asked as to what the purpose of the legislation actually is? If the purpose of the Act is to create a paper trail for employers to deny remote working requests, then that objective has been achieved. Without a decision in favour of an employee, employee confidence in the Act might quickly dissipate. 

If reform of the Act is on the agenda, there are a number of additional factors that warrant further consideration. Should the personal circumstances of an employee, including but not limited to their family status, suffering from a disability, or any other impediment that might constitute a barrier to their participation in the workforce, be given a greater degree of weight, when assessing a remote working request?

The statistics reveal that most primary caregivers in Ireland are female, many of whom want to return to, or participate in, the workforce, but are precluded from doing so, given the difficulties in balancing multiple responsibilities. Should family circumstances be given additional weight for consideration? 

A number of cases have already been decided by the WRC under the Employment Equality Act, 1998, wherein a refusal to provide remote work was considered a failure to provide a reasonable accommodation, in respect of a disability suffered by an employee. 

However, if additional determinations made by the WRC, on foot of complaints brought under the Act, continue to find against the employee, it is not hard to imagine that very soon, employees will conclude that bringing such proceedings is a fruitless endeavour.

• Barry Crushell is principal solicitor at employment law specialist firm Crushell & Co.