Complainant

Respondent

Parties

Alina  Karabko

Tiktok Technology Ltd

Representatives

Self-represented

Kiwana Ennis BL instructed by A & L Goodbody Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by an Adjudication Officer under section 27 of the Work life Balance and Miscellaneous Provisions Act 2023

CA-00063314-001

06/05/2024

The Complainant alleges that the Respondent did not consider her application for fully remote working arrangements in accordance with the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) and the Code of Practice on the Right to Request Remote Working (the Code of Practice).

In particular, the Complainant alleges 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 rejects the claim in its entirety.

The Complainant submits that the Respondent has not considered her request for remote working in line with the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) and the Code of Practice on the Right to Request Remote Working (the Code of Practice).

The Code of Practice provides as follows:

‘’An employer who receives a request for RW must consider the request, having regard to: -

·       their own needs, i.e. the business needs; and

·       the employee’s needs, i.e. their reasons for requesting RW; and

·       the requirements of this Code of Practice in relation to considering a request.

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.’’

The Complainant submits that the reasons for rejection outlined by the Respondent show that the Respondent has only considered its own business needs and has completely disregarding her needs as an employee and the reasons on which she grounded her request.  The Complainant believes that the Respondent has not considered her request in an objective, fair and reasonable manner in accordance with the Code of Practice.

The Complainant asked the Respondent to clarify the consideration process behind the rejection of her request as it was not apparent to her that her request had been assessed in an objective, fair and reasonable manner and that her needs had been considered alongside the needs of the business.

The Complainant raised a number of questions based on her remote working request in an email dated 15 April 2024 in order to see exactly how her request had been addressed and considered before the rejection decision was made.

A meeting was arranged by one of the managers and HRBP on 2 May 2024 to discuss these questions in detail. During the meeting, only two of the Complainant’s questions were addressed. 

In response to the Complainant’s question as to why team collaboration and knowledge sharing had to be performed from the office and was limited by physical presence, she was told that the benefits of sharing ideas and collaborating in-person are crucial for the company and that problem solving solutions can be found through in-office communication which wouldn’t be possible when working remotely – communication in-person is more effective than communication in group chats or messages. The Complainant noted that during her working week some of her colleagues do their working from home (WFH) days on different days, so that the full team are not, and we will never be, in the office at the same time.  The Complainant is working for the North America and Canadian market and the teams she interacts with (such as the QA and training teams) are not physically based in Dublin. The only way she can collaborate and communicate ideas with anyone who is not in the office is online.

In response to the Complainant’s question as to how the Respondent evaluated the fact that she had nowhere to live in Dublin and, as she had no accommodation in Dublin, she would need to wake up at 3am and drive 2.5 hours to come to the office by 7am, she was  told that the Respondent had given enough time in advance for employees to find accommodation and to move to Dublin in order to come to the office. The manager also gave her an example of himself and people he knows being able to find a place to live in Dublin. The Complainant believes that being compared to other employees in terms of her accommodation situation is not fair and objective.  The Complainant submits that her individual specific circumstances were not taken into due consideration in an objective, fair and reasonable way during the decision-making process.

At the end of the meeting on 2 May 2024, it was suggested to the Complainant that she start a grievance procedure through which her questions and concerns would be addressed, as she did not receive the answers to them either in writing or during the meeting. As the questions were fully based on her initial request, the Complainant believes they should have been evaluated during the consideration process. If they were, the answers could have been given to her without starting a grievance procedure.  The Complainant confirmed that she did not intend to raise a grievance.  The Complainant submits that the Respondent’s approach to her remote working request circumstances and her individual situation is clear and, she does not believe a grievance procedure would be effective in her case.

The Complainant decided to refer her case to the WRC as she believes that her remote working request had not been considered in line with the legislation and Code of Practice - only the Respondent's needs had been taken into consideration and made a priority, while her needs and reasons had been disregarded which, in her view, makes the process that led to the Respondent’s decision unfair and unreasonable.

Direct evidence of the Complainant

The Complainant expressed her objection to the Respondent’s assertion, as set out in its submission to the WRC, that:

“It is the Respondent’s position that the Complainant’s Claim is, in law, misconceived and/or is not well founded. In this respect, the Complainant’s Request was considered, and responded to, by the Respondent in accordance with its obligations under the 2023 Act. By her Claim however, the Complainant is 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 the 2023 Act, as confirmed by the Code.”

The Complainant asserted that she is not disputing the merits of the Respondent’s decision, she is disputing the consideration behind the Respondent’s decision to refuse her request for remote working.

The Complainant disputes that on-site team engagement is the only way.  She contended that her entire team would never be in the office at the same time and, therefore, the only way to meet is online.

The Complainant said that the quality teams are based abroad so they cannot meet in person and team training cannot take place in Dublin. Training is recorded and accessed online.  There is also the issue of different time zones.

The Complainant said that the Respondent must consider her application in a fair and objective way.  The Respondent is obliged to look at her role and the reality of her role.

Cross-examination of the Complainant by Kiwana Ennis BL on behalf of the Respondent

The Complainant confirmed that she was aware of the clause in her contract which specified that her place of work was the Respondent’s Dublin office.  She also confirmed that she was aware of the Respondent’s emails in relation to its Return to Office (RTO) policy whereby the Respondent informed its staff of the changes in its RTO policy which would require her to work three days in the office with effect from 9 October 2023 and exceptions would only be made where reasonable accommodation for reasons of disability was sought.

The Complainant confirmed that she had not complied with the requirement to work in the office three days per week which came into effect on 9 October 2023.

The Complainant confirmed that she disagrees with Respondent’s reasoning for refusing her request to work fully remotely.

In response to a question from Ms Ennis as to her issues with the process, the Complainant said that the facts had not been processed in a fair and reasonable manner.

Ms Ennis suggested that the Complainant did not agree with the outcome to her request so therefore she had a problem with the process.  The Complainant replied that she never asked the Respondent to change the outcome but queried how it considered the facts.  She queried if the fact that she was not living in Dublin had been taken into account.

Ms Ennis referred to a meeting on 2 May 2023 between the Complainant and two representatives from the Respondent organisation at which she asserted the Respondent explained the reasoning behind its decision.  The Complainant replied that the Respondent did not consider her personal circumstances and the environmental considerations.  The meeting lasted less than 10 minutes.

The Complainant confirmed that she had never been in the Respondent’s Dublin office.  In response to a question from Ms Ennis, the Complainant accepted that the RTO policy had to be applied consistently.

Conclusion

The Complainant submits that despite her providing proof of her accommodation search to the Respondent, her accommodation issues were not taken into consideration.  The Complainant asserts that her personal situation was not considered.

The Complainant contends that the Code of Practice requires an employer to consider a remote work application on a case-by-case basis. 

The Respondent is a digital media organisation employing over 2,800 people at its Dublin office.

It is the Respondent’s position that the Complainant’s claim is, 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 Work Life Balance and Miscellaneous Provisions Act 2023 (the Act). By her claim however, the Complainant is in effect seeking to have the merits of the Respondent’s decision to refuse her request examined by the WRC when doing so is expressly prohibited by the Act, as confirmed by the Code of Practice on the Right to Request Remote Working (the Code of Practice).

In any event, it is the Respondent’s position that, following receipt of the Complainant’s request, it 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, as per the requirements of the Act and the Code of Practice.

While the Respondent empathises with the Complainant’s predicament and acknowledges her clear preference for a fully remote working arrangement, the fact her request was not granted does not give rise to an actionable breach under the Act.

Factual background/chronology

The Complainant commenced employment with the Respondent on 24 January 2022 and holds the position of Core Operations Specialist within the Respondent’s Core Operations team.

Clause 8 of the Complainant’s contract provides as follows:

“Your normal place of work will be at [work location]. Due to the COVID-19 pandemic the Company may require you from time to time to work remotely from another location (including your own home) which ensures your own health and safety is preserved and which is compliant with any relevant authority’s guidance and regulations.”

The Complainant signed this contract on 6 January 2022 in the knowledge her contractual place of work was in the Dublin office and without any reasonable expectation that she would be entitled to work from home on a permanent basis.

At the outset of her employment, the Complainant was required to work remotely due to the COVID-19 pandemic (as provided for in her contract). However, in June 2022 the Respondent announced that it was introducing a Return to Office (RTO) policy, commencing in July 2022 for certain regions. This RTO policy provided for employees to work in the office 2 days a week whilst encouraging 3 days on site. The RTO policy was not made mandatory at that time in respect of employees based in the Respondent’s Dublin office although employees there were still encouraged to adhere to it. The Complainant was permitted, on a discretionary “individual exception” basis, to work full time from her home for all of 2022.

On 25 January 2023, the Respondent announced a review of the RTO Policy. Although this announcement reconfirmed the existing requirement for employees to attend the office 2 days a week while being encouraged to attend 3 days, it noted that the option for teams and individual exceptions would cease from 31 March 2023.  This announcement noted that requests for an exception already approved would continue to be valid. As the Complainant had been granted an exception, she was not required to attend the office at that time.

However, on 25 July 2023, the Respondent announced a planned return to office for all employees not already mandated to return, effective from 9 October 2023. The announcement confirmed that all “employees will be required to work in the office a minimum of three days per week, unless otherwise dictated by local laws or regulations”. In terms of providing a basis for the RTO policy, the announcement stated: “The Company believes that in-person collaboration inspires creativity and creates irreplaceable value.” The Respondent communicated this RTO mandate in sufficient time so as to allow all employees adequate time to put in place any necessary work or living arrangements in order to ensure they would be in a position to comply with this mandate come October 2023. On 25 July 2023, the Complainant made an exception request from this requirement. On 30 August 2023, this was refused as, by that time, exceptions were only being considered on the basis of providing reasonable accommodation in respect of a disability and were no longer being granted on the basis of individual exception requests.

On 12 September 2023, the Respondent issued a reminder regarding the RTO Policy taking effect from 9 October 2023.

The Complainant did not return to the office 3 days a week from 9 October 2023 as mandated. In fact, she did not return to the office at all and remained working fully from home. Her failure to comply with the RTO requirement ultimately culminated in a disciplinary process being initiated. An investigation meeting was convened on 21 December 2023. The purpose of the investigation meeting was to discuss “Alleged failure to follow the company’s RTO guidelines, which is a mandatory 3 days in office”. An investigation report issued on 29 January 2024, which concluded that there was a case to be answered and referred the matter to a disciplinary hearing. A disciplinary hearing took place on 7 February 2024. The Complainant confirmed throughout this process that she had never attended the office as required and that she was not able to comply with the return to office requirement on even 1 day a week. An outcome of the disciplinary process issued on 29 February 2024, by way of letter to the Complainant, upholding the allegation and issuing her with a verbal warning. The Complainant exercised her right to appeal this disciplinary outcome and an appeal hearing took place on 27 March 2024. The Complainant’s appeal was unsuccessful, as communicated to her by decision issued on 8 April 2024.

On 11 March 2024, the Complainant submitted a request for fully remote work, by way of email to the Respondent’s Human Resource Business Partners (HRBP). In her email, the Complainant set out in detail the reasons for her request including, that it would reduce her daily commute and carbon footprint; that it would improve her quality of life; and that there was a lack of suitable accommodation in Dublin for her and her cat. In support of her application, the Complainant also provided a comprehensive summary of her role and responsibilities, her working station and performance results.

HRBP acknowledged receipt of the Complainant’s email on 5 April 2024 and advised of an extension of time to adequately consider the request. HRBP communicated that they would endeavour to provide an outcome in respect of the request no later than 19 April 2024.

Ms Smrcek, HRBP, met with the EMEA Core Operations Lead, Neil Fitzsimons, on 21 and 27 March 2024 to discuss and assess the Complainant’s request. They considered the detail of the request and also had regard to, inter alia, the Respondent’s RTO policy. 

The Respondent issued a decision in respect of the request by way of letter to the Complainant on 12 April 2024 setting out that the request had been refused and the reasons for said refusal. The letter stated: “After careful consideration, we must inform you that your request for flexible [sic] working arrangement is rejected”.

The reasons for refusing the request were set out in the same letter, as follows:

“Our Core Operations department, with 123 Core Ops specialists in Dublin, operates on a hybrid work model. This model promotes 3 days of in-person collaboration in the office and 2 days of remote work. Whilst some duties of this role can be performed from home, there are other essential parts of the job that must be performed from the office, such as team collaboration and knowledge sharing for continuous upskill and performance. The company believes that in-person presence is crucial for team engagement and effective training. Exclusively working remotely would have a substantial adverse effect on these benefits”. 

Due to a typographical error, the Respondent reissued its outcome letter on 29 April 2024 confirming that the Complainant’s application for “remote work” rather than “flexible work” (as erroneously stated in the original outcome letter) had been refused for the reasons set out previously. Significantly this letter records the fact that the Complainant’s application (which outlined in greater detail her “needs”) was considered prior to a decision being made on her request.

Unhappy with the outcome of her request (as originally communicated to her on 12 April 2024 and reissued on 29 April 2024), the Complainant emailed the Respondent on 15 April 2024 alleging the Respondent had not considered her request for remote work in line with the Act and the Code of Practice and that it had disregarded her needs when making a determination. In addition, the Complainant raised several queries regarding the decision itself and the decision-making process. Mr Fitzsimons responded to the Complainant’s email on 29 April 2024 and invited her to attend a meeting on 2 May 2024 to discuss in more detail the questions the Complainant had raised. The Complainant confirmed her availability in a follow-up email.

On 2 May 2024 a meeting took place between the Complainant, Ms Smrcek and Mr Fitzsimons. During this meeting the parties discussed in detail the reasons for refusing the request and the questions that the Complainant had raised in her email dated 15 April 2024. In particular, specific examples of how the Complainant’s presence in the office impacted both her and her team’s motivation and productivity were outlined to the Complainant. Further, the Respondent explained to the Complainant that: “We must consider the needs of the whole team but ensure everyone is treated consistently and fairly and reaching a balance of a 3 day RTO hybrid working style achieves this.”

The Complainant was offered the opportunity to pursue the matter further by invoking the grievance procedure. However, the Complainant confirmed that she did not intend to go down this route. The Complainant lodged her complaint to the WRC on 6 May 2024.

Legal submission

Work Life Balance and Miscellaneous Provisions Act 2023 (the Act)

Section 20(1) of the Act provides that “An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement”. The Respondent accepts that the Act confers a right to request remote work but, significantly, it does not confer any right to be granted a remote work arrangement.

Section 20(3) of the Act provides:

“A request for a remote working arrangement referred to in subsection (1) shall—

(a)    be in writing and signed by the employee,

(b)    specify the details of the remote working arrangement requested and the proposed date of commencement and, where applicable, expiration of the remote working arrangement,

(c)     specify, having regard to the code of practice—

(I)      the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),

(II)    Details of the proposed remote working location, and

(III)  information as may be specified in the code of practice on the suitability of the proposed remote working location,

and

(d)    be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.

The Respondent accepts that the Complainant submitted a request to work remotely in accordance with section 20(3) of the Act.

Section 21 of the Act provides that:

“(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.”

The Respondent acknowledged receipt and issued an outcome in respect of the request in accordance with the timelines provided for under the Act. 

In reaching its decision, the Respondent fully considered the request. The Respondent rejects the Complainant’s assertion that her needs were disregarded, or that the Respondent did not consider her request objectively, fairly and in a reasonable manner. The Respondent engaged in an objective decision-making process and issued a reasoned outcome. The fact the Respondent did not agree with the Complainant’s proposition (i.e. that her needs (or preferences) outweigh the Respondent’s) does not mean the Respondent did not process the request in an objective, fair and reasonable manner.

Furthermore, all that section 21 of the Act mandates is that an employer considers a request to work remotely “having regard to…the employee’s needs…” It does not mandate an employer to decide that request in favour of an employee if, for example, their needs are clearly outlined and are compelling.  Therefore, once an employer has had regard to the employee’s needs, it has discharged its statutory obligations even if the employee concerned believes insufficient weight has been attributed to their needs. See Cork County Council v Minister for Local Government, Planning and Others [2021] IEHC 683.

In deciding on its optimum hybrid working model, the Respondent had regard to a variety of factors including a desire to provide flexibility to employees while at the same time not compromising ways of working that it believes are essential to the development of its employees, their contribution to the Respondent’s business and ultimately the Respondent’s success. The Respondent has reasonably determined that in-person collaboration is essential, and this is best achieved with an organisation wide mandate to work from the office 3 days a week. This policy is applied consistently across the Core Operations Team, with no employees in this department in Ireland being entitled to permanently work remotely more than two days per week, other than where permitted as a reasonable accommodation to an employee with a disability.

It should also be noted that the Respondent’s RTO mandate permits the Complainant (and her colleagues) to work from home two days a week. The Respondent is therefore already permitting the Complainant to work flexibly. 

Based on the foregoing therefore, it is clear that the Respondent has fully discharged its duties and obligations pursuant to section 21 of the Act.

In terms of this claim, section 27 of the Act confirms that the merits of the employer’s decision “shall not” be assessed in a claim before the WRC or Labour Court. In this respect, section 27 provides:

“(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—

(a)    the decision of the employer reached following his or her consideration under section 21 (1)(a) of the employee’s request,

(b)    the refusal by the employer under section 21 (1)(b)(ii) or the reasons for such refusal given under that provision,

(c)     the decision of the employer to terminate, under section 22, a remote working arrangement or the grounds given by the employer under that section for such termination,

(d)    the refusal by the employer under section 24 (3)(b)(ii) or the reasons for such refusal given under that provision, or

(e)    the refusal by the employer under section 24 (4) or the alternative date proposed under that provision.

The Code of Practice also confirms the express limits on the role of the WRC and Labour Court in respect to claims brought under the Act as follows:

“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.”

Therefore, without prejudice to the Respondent’s position that its decision to refuse the request was made objectively, fairly and reasonably, it is clear that section 27 of the Act precludes the Adjudication Officer from considering the merits of the Respondent’s decision to decline the request or the reasons underpinning same. Therefore, provided the Respondent can show that it considered and responded to the Complainant’s request as required by section 21 of the Act, there is no basis for the Complainant’s claim. It is submitted that the Respondent has more than discharged this evidential burden.

Direct evidence of Neil Fitzsimons HR Business Partner and Remote Work Decision Maker

Mr Fitzsimons said that he was selected to be involved in the decision-making process in relation to the Complainant’s remote working request as he had not been involved in the disciplinary process where the Complainant had received a verbal warning in respect of her non-attendance at the office.

Mr Fitzsimons said that management of the Respondent had seen the detrimental effect of COVID-19 on the business.  When employees were brought back to the office, it resulted in an improvement across the board in the metrics.  Productivity improved by 100% and there was a significant improvement in quality. 

Mr Fitzsimons said that in-person knowledge was invaluable in terms of immediacy and level of support.  There was also an opportunity to interact with other teams.  Mr Fitzsimons acknowledged that most people did not want to come back to the office for three days per week.

Mr Fitzsimons said that the Complainant’s remote working request was the first remote working request he had received so he put a lot of work into it.  He met with his colleague Antonija Smrcek on 21 March 2023.  They went through the legislation and the Code of Practice.  They then went through the Complainant’s request and the business plans.  They met informally a couple of times.  They reached a conclusion, based on evidence and practice elsewhere that it was not possible to agree to the Complainant’s request. 

Mr Fitzsimons said that the Complainant was, in general, a strong performer.  The business needs strong performers to help colleagues learn and grow.  This was best done through in-person contact.

Mr Fitzsimons asked the Complainant to meet with him and Ms Smrcek on 2 May 2023 as he wanted to better understand the Complainant’s concerns.

At the meeting, he felt that the Complainant fundamentally disagreed with everything they said. During the meeting, the Complainant said that there was no point in continuing because management was not going to change its mind. 

He asked the Complainant if she would change her mind.  She replied “No”.

Mr Fitzsimons said that the Respondent had lots of employees who have moved to Dublin and others who commute long distances.

The Complainant confirmed that she would not be prepared to work even one day in the office.

Cross-examination of Mr Fitzsimons by the Complainant

The Complainant asked why Mr Fitzsimons had not considered her request for an exemption from the requirement to return to the office.  Mr Fitzsimons replied that this was not true, and that the Complainant had been granted an exemption in 2022.

The Complainant then asked why she had to apply for something that had already been granted to her.  Mr Fitzsimons replied that in 2023 all exemptions had to be resubmitted and reviewed.

Mr Fitzsimons said that he had wanted to reach a compromise but that this was not possible.

Direct evidence of Antonija Smrcek HR Business Partner and Remote Work Decision Maker

Ms Smrcek said that once she received the Complainant’s request, she read through it all.  The next step was to appoint someone from the business to assist in dealing with the request.  Mr Fitzsimons was appointed as he was not involved with disciplinary process relating to the Complainant’s non-adherence to the Return to Office requirement.

Ms Smrcek said that she had a series of meetings with Mr Fitzsimons.  They reviewed all the grounds that the Complainant had put forward in her remote working request.

Ms Smrcek said that the purpose of the meeting of 2 May 2023 between herself, Mr Fitzsimons and the Complainant was to try to find a middle ground.  At the meeting, Mr Fitzsimons outlined some examples of where a return to the office would help the Respondent organisation.  Ms Smrcek said that the Complainant replied that “even coming in one day per week would beillogical”.

Conclusion

The Complainant’s principal place of work per her contract is the Respondent’s Dublin office. She has been aware of this since she joined in 2022. She has also been aware she has been required to return to the Dublin office 3 days a week since October 2023, even though to date she has not complied with this requirement.

The Complainant is currently entitled to work remotely two days per week.

The Complainant’s request was refused following an objective, fair and reasonable decision-making process, which took account of her needs and those of the Respondent. It was ultimately decided by the Respondent not to grant an exception to the Complainant and disapply its hybrid working policy, which policy was decided upon following careful consideration of a variety of factors, not least the Respondent’s desire to ensure better team collaboration and knowledge sharing in the post-COVID working world.

The Complainant’s view that her job can be carried out fully remotely, does not take precedence over the Respondent’s evidence-based view that employees returning to the office, even for three days per week, results in an increase in productivity and accuracy.  It is within the Respondent’s remit to decide what is best for the business.

While it is acknowledged that the refusal to grant an exception to the Complainant could be perceived as harsh from her perspective, in circumstances where the Respondent has developed and communicated a hybrid working arrangement for its Dublin based staff, it is necessary to apply it consistently. To not do so and consider each individual case on its individual merits could perversely result in decision making that was not objective, fair and/or reasonable. 

The Complainant’s request was considered on an individual basis. The Respondent has applied its RTO policy consistently and has provided good reasons for doing so. 

While respecting the Complainant’s right to submit a request to work remotely fulltime and acknowledging she is disappointed that request was not accommodated, the Complainant’s claim is misconceived in law and/or not well founded in circumstances where the request was correctly processed by the Respondent and where there is no scope for the Adjudication Officer to assess the merits of the Respondent’s refusal of the request and/or the reasons underpinning that refusal.  The Act is very limited in terms of what rights are granted to an employee.  The focus of the legislation is on the process.  The Respondent submits that the Complainant has not identified any problem with the process.

Without prejudice to this statement of the law, the Respondent’s reasons for refusing the request are logical and reasonable, particularly when account is taken of the size of the Respondent’s workforce and the consequent necessity to avoid a case-by-case approach to decision making when considering remote working requests.  The Complainant’s request was given serious consideration and the reasons for the refusal were provided to her. 

The Complainant worked fully remotely during COVID-19.  On 25 July 2023, the Respondent informed its staff of its Return to the Office (RT0) policy whereby all staff who had not already done so would be required to return to the office at least three days per week with effect from 9 October 2023.   

On 25 July 2023, the Complainant submitted a request to continue working remotely fulltime due to accommodation and other issues.  Her request was refused by the Respondent.  She then submitted a complaint to the WRC alleging that the Respondent had breached her rights under the Act.

At the outset of this decision, it is necessary to explain what the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) does.  The long title of the Act, which appears at the beginning of the Act, sets out a summary of the provisions which are included in the Act.  The relevant provision, for the purpose of this decision is to “provide for the entitlement of employees to request remote working arrangements”.  This entitlement is set out in section 20 of the Act as follows:

20. (1) An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement.

(2) An employee’s approved remote working arrangement shall not commence before a time when the employee concerned has completed 6 months continuous employment with the employer concerned.

(3) A request for a remote working arrangement referred to in subsection (1) shall—

(a) be in writing and signed by the employee,

(b) specify the details of the remote working arrangement requested and the proposed date of commencement and, where applicable, expiration of the remote working arrangement,

(c) specify, having regard to the code of practice—

(i) the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),

(ii) details of the proposed remote working location, and

(iii) information as may be specified in the code of practice on the suitability of the proposed remote working location,

and

(d) be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.

(4) An employee who has submitted a request in accordance with subsection (3) to his or her employer shall, if the employer so requests, furnish to the employer such further information as the employer may reasonably require in relation to the request.

(5) Before the date on which an agreement referred to in section 21 (1)(b)(i) is signed by the employer and the employee, the employee may, by notice in writing signed by him or her and given to the employer, withdraw a request submitted in accordance with subsection (3).

(6) For the purposes of this section, where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cesser, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee.

Section 21 of the Act obliges an employer who receives a remote working request to consider the request having regard to a number of criteria and to respond not later than four weeks after receipt of the request:

21. (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.

Practical guidance for employers and employees on how to make and handle requests for remote working is provided in the Workplace Relations Commission’s (WRC) Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working (Code of Practice).  As set out in section 31 of the Act, the Code of Practice shall be admissible in evidence in proceedings before an Adjudication Officer of the WRC.

It is appropriate to now look at what the Act does not do.  Section 27 of the Act sets out the role of an Adjudication Officer of the WRC when considering an appeal regarding section 21 of the Act:

“27. (1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first-mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 21 (1) may—

(a) direct that the employer comply with paragraph (a) of section 21 (1),

(b) direct that the employer comply with any of the requirements of paragraph (b) of section 21 (1) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 20 was a reference to such date as may be specified in the direction,

(c) award compensation in favour of the employee concerned to be paid by the employer concerned, or

(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c).

…

(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—

(a) the decision of the employer reached following his or her consideration under section 21 (1)(a) of the employee’s request,

(b) the refusal by the employer under section 21 (1)(b)(ii) or the reasons for such refusal given under that provision,

…”

From the above, it is clear that, as an Adjudication Officer of the WRC, my remit under section 27(6) of the Act, is strictly limited to assessing whether an employer considered a request for remote working in line with section 21 of the Act and in accordance with the Code of Practice.  I am not empowered to investigate the merits of a decision made by an employer where a request for remote working has been refused or where a request has been granted but is not in line with the employee’s preferred pattern.

The matter for investigation, therefore, is whether the Respondent complied with section 21 of the Act when considering the Complainant’s remote working request.  Section 21 places 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.

On 25 July 2023, the Complainant submitted a request to the Respondent to continue to work remotely on a fulltime basis.  It is clear from the evidence put before me at the hearing that the Complainant’s request was treated very seriously by the Respondent.  On receipt of the Complainant’s request, two members of staff of the Respondent, one from HR and the other a manager from the Complainant’s operational area, met on a number of occasions to consider the request in detail.  According to their evidence, they studied both the Act and the Code of Practice, they examined the Complainant’s request and they referred to the Respondent’s business plans.  Mr Fitzsimons, the Complainant’s line manager, said that taking all of the relevant factors into account, the decision was made to refuse the Complainant’s request to work remotely on a fulltime basis. 

I find, therefore, that the Respondent has complied with its obligations under section 21(1)(a) of the Act.

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 Respondent acknowledged receipt of the Complainant’s remote working request on 5 April 2024 and notified her that it required an extension of time to adequately consider the request.  The Respondent said that it would try to provide an outcome in respect of the Complainant’s remote working request no later than 19 April 2024.

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.

Having carefully considered the submissions of both parties and all the evidence put before me at the adjudication hearing, I declare that this complaint is not well founded.

Right to request remote working.