Complainant

Respondent

Parties

Dienifer  Taylor

Microchip Technology Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Self 

 A McNamara HR

S Stephens HR

Act

Complaint/Dispute 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-00064922-001

23/07/2024

The Complainant is in the employment of the Respondent since the 4th of April 2022. She provided details of her monthly pay. The weekly hours worked are 39. The Complainant is seeking to change her current two day a week hybrid working arrangement to fulltime remote working.

The Complainant confirmed that she is currently working remotely two days a week. She explained that she had called her manager in January 2024 about changing to a three-day week. Essentially, she finds that she is overwhelmed by the amount of her daily commute which is 150 kilometres on each working day. Her request was dismissed by her line manager and the Complainant is not sure if it was brought to HR. When her request was dismissed by the line manager the Complainant contacted the WRC and she found that there was a lack of information about her rights and how to pursue the matter. She decided then to apply for fulltime remote working as she already had a part arrangement for two days a week. Using the WRC template application for remote working which is available online, the Complainant completed an application dated the 17th of July 2024 and submitted with her papers to the WRC. At the hearing the Complainant confirmed that she had not applied in writing to her employer to change her current arrangement.

The Respondent referred to the core hours of the employment on a Monday to Friday basis with some flexibility around starting earlier or later. The Complainant changed her hours in January 2024. The Respondent has a hybrid working policy which is limited to two days per week. The Complainant’s original application on the 4th of October 2022 was to work Wednesdays and Thursdays which was approved. On the 18th of October 2023 she applied to change the arrangement to Thursdays and Fridays which was also approved and remains  her current arrangement. 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 Respondent referred in their submissions to issues around attendance and performance on the part of the Complainant related in some respects to adherence to the requirements to attend the office of the business when required.

Neither section 21(1) of the Work Life Balance and Miscellaneous Provisions Act 2023 appear to rule out the possibility of seeking to increase remote working or the amount of time spent on remote working within a hybrid arrangement. However, section 21(1) does refer to “An employer who receives a request for a remote working arrangement submitted in accordance with section 20(3) shall—” and the section goes on then to deal with consideration of the request and the requirement to respond either by approval or by a “notice in writing informing the employee that the request has been refused”. Section 20(3) under the heading “Right to request a remote working arrangement” stipulates that such a request “shall— (a) be in writing and signed by the employee”. 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 application submitted to the WRC was not the correct approach and does not represent a lawful application for a new remote working arrangement within the meaning of the Act.

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 is no finding against the employer in this case, I did express a concern at the hearing that the employer response to the complaint, criticising the Complainant’s  performance of her contract, did not appear to be an appropriate course of action in a public hearing on what is in effect a technical matter related to a narrow point under legislation. One where the Complainant was exercising her rights under law, as she understood those rights. I also observed that the Respondent may have a corporate policy of limiting hybrid working to a two-day remote working week as emerged in the discussion at the hearing, but the implication of the legislation and the Code of Practice issued by the WRC in particular, is that the Respondent  should have  a written policy which sets out how requests for flexible and remote working can be made within the meaning of the Act, identifying the appropriate decision makers.  While this current case was a straightforward request to increase the access to remote working, there are other aspects of the legislation which give rights to employees in certain specific circumstances, referring to parents and carers seeking flexible working arrangements which should also be incorporated into any policy.

Complaint seeking adjudication by an Adjudication Officer under s27 of the Work life Balance and Miscellaneous Provisions Act 2023 I find the complaint made by Dienifir Taylor against Microchip Technology Ireland Ltd to be not well founded.

Application for extended remote working