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Remote Working Requests: Top Tips for Employers

The Work Life Balance and Miscellaneous Provisions Act 2023 gives employees the statutory right to request to work remotely and/or flexibly. Five complaints were brought to the WRC under the legislation in the latter half of last year. Our Employment Law & Benefits team reviews the key take aways from those decisions and provides top tips for employers as to how best to deal with a request to work remotely.


What you need to know

  • There have been five cases to date brought to the Workplace Relations Commission (WRC) under the Work Life Balance and Miscellaneous Provisions Act 2023.
  • The right provided under the Act is a right to request to work remotely and not an automatic right to work remotely.
  • The WRC has provided insight as to what it means to consider a request for remote working in an ‘objective, fair and reasonable’ way.
  • Employers should have a clear policy relating to the right to work remotely.
  • The WRC cannot review the merits of an employer’s decision to refuse a request to work remotely. Instead, it must look at the manner in which a decision was made.

Introduction

The Work Life Balance and Miscellaneous Provisions Act 2023 grants employees the statutory right to request to work remotely and/or flexibly. The Act is accompanied by the Workplace Relations Commission Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working. The Code provides practical advice for employers and employees on how to make and handle requests for remote working.

Five complaints have been brought to the Workplace Relations Commission under the Act since July of last year. In all instances, the WRC found in favour of the employer. The following top tips arise from these decisions.

Right to request

The first of five complaints heard by the WRC last year was the case of Karabko v TikTok Technology Ltd. In its decision, the WRC highlighted the limited nature of the entitlements under the Act. Employees have a right to request to work remotely, not an automatic right to work remotely.

Duties of employer

In Karabko, the WRC emphasised specific duties that an employer has upon receipt of a request to work remotely:

  1. To consider the request having regard to the employer’s needs, the employee’s needs and the requirements of the Code of Practice. In Karabko, several meetings were held between HR and management to consider the complainant’s request in detail, against the Act and Code of Practice as well as the employer’s business plans. All relevant factors were taken into account, which made the decision-making process compliant with the Act.
  2. Approve the request for remote working or notify the employee in writing of the refusal within four weeks of receipt of the request. The Act provides for an extension of this consideration period of up to eight weeks.

Objective, fair and reasonable decision-making

An employer should consider a request for remote working in an objective, fair and reasonable manner. In Karabko, the WRC held that the employer had carefully considered a variety of factors, including its own need to ensure better team collaboration and knowledge-sharing by requiring employees to return to the office. The WRC held that the needs and requirements of the employee should feature in the decision-making process. However, the mere opinion of the employee that their job could be carried out remotely does not take precedence over an employer’s evidence-based view that a return to the workplace “results in an increase in productivity and accuracy”. The WRC also held that it is within an employer’s “remit to decide what is best for the business”. In this case, the employer had developed a hybrid working arrangement for its Dublin-based staff. The WRC recognised the need to apply this arrangement consistently. It held that not doing so, and instead, considering each individual case on its merits given the size of the company, might lead to decision-making that was not objective, fair and/or reasonable.

In Osorio v Cognizant Technology Solutions Ireland Limited, the employer could not approve the employee’s request to work remotely. The decision was constrained by the ‘client delivery model’ operated by the employer. Under this model, the client could require those employees working on its project to work in person in the office. The WRC held that the employer had recognised the employee’s need to balance his work and childcare responsibilities in the decision-making process. It had consulted its client on the employee’s behalf to explore the possibility of remote working, but the client was unwilling to permit this. The employer offered an alternative solution even after the process had ended, whereby the employee could work on a different project. However, he decided not to pursue that option. For these reasons, the WRC held that the employer’s decision-making process was objective, fair and reasonable.

Reasonable requests to return to office

Employers may make reasonable demands for employees to return to the office. In Rafael Andrade Jorge v Centric Mental Health, the employee had previously enjoyed a working arrangement with his employer which was fully remote. He had no obligation to work at the company’s office. The employer sought to change this term of the employee’s contract, requiring him to be in the office for one day a month. The WRC held that the employer had a legal right to change the contract term. It also found that the requirement to return to the office was reasonable in circumstances where the employee continued to substantially work remotely and only worked 12 days a year at the office.

Written policy

It is essential that every employer have a written policy for dealing with remote working requests. In Dienifer Taylor v Microchip Technology Ireland Limited, the WRC expressed concerns. While the employer had a corporate policy of limiting hybrid working to a two-day remote working week, it should have had a written policy. The policy should clearly set out how requests for flexible and remote working can be made within the meaning of the Act. It should also identify the appropriate decision makers responsible for handling these requests.

WRC cannot review the merits of a decision

In Karabko, it is made clear that under the Act, the WRC cannot investigate the merits of a decision regarding a remote work request. Instead, it is limited to assessing whether an employer considered a request for remote working in a way that is compliant with the Act and the Code of Practice.

Top tips for employers

For more information and expert advice, contact a member of our Employment Law & Benefits team.

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



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