Michael Doyle

The Work Life Balance and Miscellaneous Provisions Act 2023 was enacted in April 2023 and provides employees with a right to request remote work.

The Code of Practice for Employers and Employees on the Right to Request Remote Working, which was published in March of this year, gave effect to this right. We commented in detail on the Code in our last client update on this topic.

Following the publication of the Code, all employees have a legal right to request remote working arrangements from their employer.

Whilst a request can be submitted to an employer on the very first day of employment, an employee must have at least six months’ continuous service before the arrangement can begin. The Act provides that requests must be made as soon as practicable and at least eight weeks before the proposed start date of a remote working arrangement.

Employees must provide a host of details regarding the remote working arrangement including the duration and the reasons for the request when making the application to their employer.

Employers who receive a request should consider requests fairly, objectively and reasonably and any decision should take into account the employee’s needs, the employer’s needs and the requirements of the Code.

In terms of timelines, employers must respond to a request within four weeks or alternatively extend the four week period by a further eight week period, if necessary to make a determination. Where an application for remote work is refused, employers must provide notice in writing to the employee setting out the reasons for the refusal.

Media reports in March suggested the first statutory complaints had been lodged by employees, aggrieved at their employer’s failure to grant their remote working arrangement, within days of the Code being published. These cases are now being heard by the WRC and decisions are being issued.

In what is believed to be the first reported case, Alina Karabko v TikTok Technology Ltd (where A&L Goodbody’s employment team acted in defence of the claim), the WRC analysed both the obligations on employers who receive remote work requests, and the remit of the WRC in respect of complaints lodged by employees pursuant to the Act.

What happened in the case?

The complainant commenced employment in early 2022 during the Covid-19 pandemic. Her normal place of work was specified in her contract of employment as the respondent’s office in Dublin. As the complainant commenced employment during the pandemic, she was allowed to work fully remotely from home until such time as the respondent determined it was appropriate to return to the office.

Later in 2022 the respondent announced a return to office policy for all employees on a phased basis and introduced a hybrid working model, whereby employees were permitted to work remotely two days per week. The complainant availed of this arrangement but did not attend the office the other three days of the week and, de facto, worked fully remotely, even though this had not been authorised.

Shortly after publication of the Code, the complainant, who was in rented accommodation outside of Dublin, submitted an application for fully remote work in accordance with the Act. In her application she set out the details of the proposed working arrangements, the duration and the reasons for the request.

The respondent acknowledged receipt of the request and notified the complainant that it would need a further four weeks within which to adequately consider her request. Once the respondent reached a decision to refuse the complainant’s request, it notified her in writing setting out its reasons for the refusal.

The complainant subsequently lodged a complaint to the WRC in which she claimed the respondent had failed to consider her needs when processing her request and, on this basis, she claimed the respondent’s decision-making process was not carried out in an objective, fair and reasonable manner, as required by the Code.

The respondent, in response, argued that it engaged in an objective decision-making process and the fact that the complainant was not in agreement with its decision to refuse her remote work request did not render its decision making process in breach of the Act and requirements of the Code.

The respondent further argued that to disregard its already existing hybrid working model and consider each individual case on its individual merits could perversely result in a decision making process that was not “objective, fair and/or reasonable”.

What did the WRC decide?

In reaching a decision in favour of the respondent, the WRC considered the extent of its powers in hearing an employee’s statutory claim under the Act.

Importantly, the WRC noted the limits of its powers in section 27(6) of the Act, which provides that an adjudication officer is not empowered to investigate the merits of a decision made by an employer where a request for remote work has been declined. The WRC noted its remit is strictly limited to assessing whether an employer considered a request in line with section 21 of the Act and in accordance with the Code.

The WRC observed that section 21 of the Act imposes three specific obligations on employers, as follows:

1. employers must consider a remote working request having regard to its needs, the employee’s needs and the requirements of the Code;
2. employers must either approve a request for remote working or notify the employee in writing of its refusal within four weeks of the receipt of the request; or
3. extend this period by a further eight weeks to adequately consider a request, before responding.

In reaching its decision, the WRC acknowledged that the complainant had made a comprehensive case for full-time remote work but found that the respondent had complied with each of the requirements set out in Section 21 and, on that basis, found the complainant’s case was not well founded.

What does this mean for employers?

This case will undoubtedly be welcomed by employers as it reiterates that the right in the Act and under the Code is to request remote working, not to remote work.

The case also highlights the statutorily prescribed limitations on the role of the WRC in considering claims under the Act by employees aggrieved at the fact their remote working request has not been approved. The fact that the WRC is not empowered to look behind the merits of an employer’s decision might come as a surprise and disappointment to many employees, but this case confirms what the Act provides in that regard.

From an employer’s perspective, the case outlines the procedural steps that must be taken to comply with the law and includes a helpful checklist of criteria to be taken into account by an employer when considering a remote working request.

A key takeaway is that if an employer ends up before the WRC, it will need to be able to demonstrate compliance with the decision-making deadlines set out in the Act and that adequate consideration was given to the request, taking into account the needs of the employer, the needs of the employee and the requirements of the Code.

While this might be the first reported decision of the WRC on this topic, we have no doubt that it will not be the last. Anecdotal evidence would suggest many employers are struggling to implement and police compliance with their post-Covid return to office policies and, as enforcement picks up pace on this front, it can be expected more permanent remote working requests will be made by employees and legal claims pursued where those requests are not granted.

A likely battleground is going to be in relation to an employer’s ability to evidence that it gave adequate consideration to an employee’s request in the manner envisaged by the Code. Watch this space!

• Michael Doyle is an employment partner at A&L Goodbody LLP.