Complainant

Respondent

Parties

Javier Osorio

Cognizant Technology Solutions Ireland Limited

Representatives

Represented himself 

Maura Connolly Addleshaw Goddard (Ireland) LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by an Adjudication Officer under s27 of the Work life Balance and Miscellaneous Provisions Act 2023

CA-00064130-001

18/06/2024

The respondent is part of a US multinational information technology services and consulting group.  The business employs 380 people and is based in Dublin 3.  The complainant is a senior process executive and he has worked for the respondent since June 2021.  He works on a project being undertaken by the respondent for a major technology company, “the client.”  When he commenced in his job, the complainant worked from home on a full time basis due to Covid-19 restrictions.  In October 2022, he moved to a hybrid model, working from home on Mondays and Fridays.  From November 2022 until August 2023, he worked from home five days a week.  Since then, he has been required to come into the office five days a week to work on the client’s project.  As he collaborates with colleagues in Latin America, his hours of work are from 4.00pm until 1.00am from Monday to Friday.

I understand from the respondent’s submission that, following the enactment of the Work Life Balance and Miscellaneous Provisions Act 2023, 72 employees applied for remote working.  The complainant submitted an application on March 10th 2024.  In his email to the HR department, he said that he was seeking “…a hybrid work model, where I can work remotely from home most days and come to the office a maximum of two days a week.”  He said that his reason for seeking remote work was so that he could balance the responsibilities of his job with caring for his daughter who is age 10.

On April 26th 2024, the complainant had a meeting with Ms Avril McManus, who is responsible for HR policies and procedures.  In her evidence, Ms McManus said that she asked the complainant a series of questions to determine his remote working requirements and she completed a health and safety questionnaire related to home-working.  On May 9th, in a letter from the HR business partner, Ms Sunitha Gogineni, the complainant was informed that his request for remote working had been rejected.

The complainant appealed against this decision and attended an appeal meeting with Ms McManus and another manager on June 6th.  On June 11th, he was informed that his application for remote working was still not accepted.  He was advised that some projects were suitable for remote working and that he could apply for other roles that matched his skills.  On June 18th, the complainant submitted this complaint to the WRC.  In an effort to resolve matters, Ms Gogineni met the complainant on July 17th 2024.  She advised him again that there are projects that are suitable for remote working and he was invited to apply for open roles on these projects.  In his evidence at the hearing, the complainant said that he was reluctant to move off the project on which he was working in case his employment was terminated when another project finished.

It is the complainant’s case that, as the father of a 10-year-old child, he wants to balance his work and family responsibilities.  He said that his wife works in hospitality and his schedule and the distance he has to travel to work causes difficulties with childcare.  He also said that his evening schedule impacts on the time he spends with his family.

When his application for remote working was rejected in May 2024, the complainant felt that he was given a generic response, with little consideration for his individual situation.  He said that everyone who applied for remote working got the same email in response.  I understand from the evidence of the respondent’s witnesses that all 72 applications for remote working were rejected.

The complainant raised the fact that, having submitted his application for remote working on March 10th 2024, he only got a reply on May 9th.  Also, his appeal was postponed several times and he claims that this demonstrates a lack of seriousness and commitment to his case on the part of the company.  He criticised the company’s handling of his appeal, saying that key responsible people did not attend.

On behalf of the respondent, Ms Connolly said that it is a fundamental term of the complainant’s contract that he is based on the site of the client on whose project he is working.  When he accepted his contract of employment, the complainant accepted this explicit term.  When the complainant sought to change to remote working, the respondent’s managers met with him on three occasions.

Ms Connolly submitted that, in accordance with the provisions of the Work Life Balance Act 2023, the respondent has considered the complainant’s request for remote working and given him the right to appeal.  The respondent is constrained by what is described as the “client delivery model” which means that the client has stipulated that employees working on its project must attend work in person in the office they have provided and fitted out.

Taking account of the complainant’s personal circumstances, the HR manager had a meeting with him even after the formal process had ended, to see if an alternative solution could be found.  He was offered an alternative arrangement which could have included working on a different project, but he decided not to pursue that option.

It is the respondent’s case that it has discharged its responsibility to consider the complainant’s request for remote working fairly, objectively and reasonably. 

The long title of the Work Life Balance and Miscellaneous Provisions Act 2023 (“the Act”) states that its purpose is,

…to give further effect to Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU and, for that purpose and other purposes, to amend the Parental Leave Act 1998 to provide for the entitlement of certain employees to leave for medical care purposes and domestic violence leave and to request flexible working arrangements for caring purposes; to provide for the entitlement of employees to request remote working arrangements[.]

From this, it is apparent that the purpose of the Act is to place a legal obligation on employers to provide a process for and to facilitate employees to request remote working.  This provision is set out at s.20(1) of the Act which provides that an employee may request approval from their employer for a remote working arrangement.  Section 20(3) sets out the manner in which an employee may apply for remote working, stipulating that an application must be in writing and must be submitted eight weeks in advance of the proposed date of commencement of the remote working. 

Section 21 sets out the obligation on the employer to consider a request for remote working under s.20:

(1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20(3) shall -

(a) consider that request, having regard to -

(i) his or her needs,

(ii) the employee’s needs, and

(iii) the requirements of the code of practice,

and

(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request -

(i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out -

(I) the details of the remote working arrangement, and

(II) the date of the commencement and the expiration, if any, of the remote working arrangement,

(ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or

(iii) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.

(2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks.

(3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it.

Conclusion

I have considered the complainant’s claim that his application for remote working was not considered seriously, that his request was not dealt with professionally and that there were delays.  Based on the facts presented to me and the chronology of events from the date of his application on March 10th 2024 until the outcome of his appeal on June 11th 2024, 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 accept that, in contravention of s.21(1)(b) above, the respondent took eight weeks instead of four to reply to the complainant’s application and that, by failing to notify him in writing of the need to extend the timeframe, they did not comply with s.21(1)(b)(iii).  In these atypical circumstances however, when 72 employees out of 380 applied for remote working, and, when it was necessary to consult a client company, 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.  On May 9th 2024, when the complainant received confirmation that his application was rejected, this was within the timeframe provided for at s.21(2).

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.

Remote working