ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053903

Parties:

Complaint:

Date of Adjudication Hearing:  02/12/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 2nd September 2024.  Detailed submissions and documentation was received from both Parties.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard in Lansdowne House on 2nd December 2024.  The Complainant was represented by the Financial Services Union (FSU) and the Respondent was represented by Ms Maura Hurley, Solicitor with Addleshaw Goddard (Ireland) LLP.  A number of HR witnesses attended on behalf of the Respondent.  This complaint was heard in public, and the Parties were made aware that their names would be published within this decision.  Any evidence in dispute was taken under oath/affirmation.  At the outset, the Complainant’s Representative had indicated that this complaint had been brought as a ‘test case’ on foot of a large number of unsuccessful applications for remote working by other employees of the Respondent.  I confirmed that this complaint would be adjudicated upon and determined on its own particular facts.  A further period of time was allowed for the Parties to exhaust all alternative avenues of resolution.  As there has been no resolution to date, it had been necessary to issue this decision.  All submissions, documentation and evidence proffered by the Parties have been fully considered herein.

Background:

The Complainant is employed by the Respondent to undertake an IT role on behalf of one of its clients (‘the Client’).  The Complainant contends that the Respondent’s refusal of her application for remote working is in breach of the Work Life Balance and Miscellaneous Provisions Act 2023 (‘the Act’) and underlying Code of Practice and seeks compensation by way of remedy.  The Respondent contends that her application was objectively, fairly and reasonably considered and refused in accordance with the Act and the Code of Practice owing to a contractual constraint with the Client and seeks to have this complaint dismissed.

Summary of Complainant’s Case:

The Respondent is a subsidiary of a large multinational IT consulting and outsourcing company.  Relevant to this particular complaint, the Complainant resides in Balbriggan, Co. Dublin and is married with a young child.  She commenced employment with the Respondent on 12th March 2018.  Her employment contract provides that the Respondent can stipulate the location of her employment.  At the material time of this complaint, she held the role of Senior Process Executive providing specialised technology services through Russian for a client of the Respondent (‘the Client’) and earned €2,703 gross per month.  Her role had been fully office-based at the Client’s premises in Eastpoint Business Park, Dublin 3 until the Covid-19 Pandemic in 2020, when the Respondent migrated their employees to fully remote working.  In 2022, the Respondent terminated this remote working arrangement and the Complainant had to return to work on-site full time. 

Following the commencement of the Work Life Balance and Miscellaneous Provisions Act 2023, on 3rd April 2024, the Complainant submitted a formal written application to the Respondent requesting remote working to commence from 3rd June 2024 on the following basis: (i) Commute: spending 3-5 hours a day commuting to and from work adversely impacting on her health, domestic life and productivity at work.  (ii) Financial Impact: the cost of public transport amounts to €160 per month.  (iii) Family Responsibilities: the accumulated time spent on commuting has made balancing work and family obligations increasingly challenging and is negatively impacting on her family life.  (iv) Productivity: working from home for two years during the Pandemic had significantly improved her overall productivity and job satisfaction.  (v) Health Concerns: the stress and exhaustion from long hours of commuting has led to a deterioration in her physical and mental health.  The Complainant proposed to work from her home office where she had previously worked during the Covid-19 Pandemic and which complied with Health and Safety Regulations.  She also undertook to uphold company confidentiality and comply with all relevant company policies. 

On 29th April 2024, HR held a meeting with the Complainant to discuss her application and on 9th May 2024, (5 weeks post-application), issued a refusal citing a contractual stipulation with the Client requiring her role to be conducted on-site as follows: “We have considered your request for remote working.  Unfortunately, having given full, careful consideration to your application, we regret that Cognizant is unable to accommodate your request.  Cognizant has a contract with the client for the… operation to which you have been assigned that stipulates the associate duties must be performed at the client’s facility in Eastpoint Business Park, Dublin.  Workspaces provided by the client are designed to promote a collaborative and productive working environment during your scheduled working week.  The exceptions to this contractual agreement may only be made with the consent of the client in the case of business continuity arrangements.  Cognizant is unable to implement a permanent solution for associates wishing to work remotely under the contract.  We appreciate that this decision not to agree to your remote working request will be a disappointment to you however we hope you can understand and accept the reasons for the refusal.  We are happy to discuss flexible working arrangements; different shift patterns or any other reasonable accommodation which could help your situation.  You have the right to appeal against this decision.”

On 13th May 2024, the Complainant submitted an appeal letter outlining the grounds for reconsideration of her application for remote working as follows: (i) Evolving Work Environment: The evolving work landscape and advancements in technology make remote work essential for enhancing staff satisfaction and productivity.  (ii) Personal Circumstances: Remote work would improve both physical and mental health by reducing commute-related stress and allow for more time with her family, especially to support childcare and lessen the strain on her elderly mother who helps with childcare.  (iii) Client Considerations: Exploring flexible solutions that maintain business continuity while accommodating remote work is in the best interest of all parties involved.  (iv) Adaptability and Retention: By offering flexible work arrangements, the company can attract and retain top talent, contributing to long-term success and market competitiveness.

Following an appeal meeting with the Complainant on 27th May 2024, by letter dated 11th June 2024, the Respondent issued a decision rejecting her appeal and upholding the refusal of remote working as follows:

“Unfortunately, we regret the decision remains the same and Cognizant is unable to accommodate your request and your appeal is rejected.  As previously stated, Cognizant has a contract with the client for the… operation to which you have been assigned that stipulates the associate duties must be performed at the client’s facility in Eastpoint Business Park, Dublin.  Workspaces provided by the client are designed to promote a collaborative and productive working environment during your scheduled working week.  The exceptions to this contractual agreement may only be made with the consent of the client in the case of business continuity arrangements.  Cognizant is unable to implement a permanent solution for associates wishing to work remotely under the contract. 

I wanted to advise of alternative support for areas you mentioned in your application:

1. Commute:  Cognizant offers TaxSaver commuter tickets which we would encourage you to avail of.  We are also happy to discuss flexible working arrangements such as different shift patterns or any other reason(able) accommodations which can help your situation.
2. Financial impact:  Cognizant is partnered with (a Bank)who hold finance talks with our associates so we would encourage your participation in the next scheduled event.
3. Family responsibilities:  In terms of work life balance, we would encourage you to avail of the lifestyle benefits that Cognizant offers which can be found in the HUB tool.
4. Productivity:  We can organise for a discussion with your managers to work with you to look at how we can reduce the distractions.  We would be open to discuss any suggestions you have.
5. Health Concerns:  There is support available to you for example, the Employee Assistance Program for free confidential counselling, resources and information.  You will find the details in the email attachment.”

On 12th June 2024, the Complainant emailed HR requesting written proof of its contractual obligation with the Client cited as preventing the Respondent from allowing her to work remotely.  On 13th June 2024, the Respondent responded: “We are not able to share the contract with associates as it contains proprietary and confidential company information.  Access to such documents is restricted to authorised personnel only in order to protect the integrity and confidentiality of our business operations.  I would like to reiterate; Cognizant leadership have spoken with (the Client) about the remote working requests and the reasons for them.  (The Client is) aware of the remote working requests and the answer is still no.  We have followed the code of conduct, you have the right to apply for remote working in Ireland but there is no guarantee your request will be approved by your employer.  You applied for remote working, we completed the 1:1 consultation, we considered the information, and your request was rejected.  Your appeal was then rejected.  We consider this matter resolved and the case closed.  We appreciate your understanding and compliance with the company’s policies and decisions.”  Still aggrieved by the Respondent’s refusal of her application for remote working, the Complainant referred this complaint to the WRC on 2nd September 2024.

On behalf of the Complainant, it was submitted that the Respondent had taken more than 5 weeks to provide her with a written response to her application for remote working.  In this respect, it had failed to provide a notice in writing to the Complainant that extended the 4 week period for a further period specified in the notice as required by Section 21(1)(b)(iii) & (2) of the Work Life Balance and Miscellaneous Provisions Act 2023.  It was further submitted that in its initial decision and on appeal, the Respondent had not meaningfully considered the Complainant’s individual needs as an employee in accordance with the Act or the underlying Code of Practice.  The proposals contained in the letter dated 11th June 2024 in relation to her needs were meagre.  Furthermore, the Respondent’s reliance upon a stipulation in its contract with the Client as preventing the Respondent from allowing the Complainant to work remotely had not been substantiated.  In this respect, it was pointed out that other employees of the Respondent working in a different team for the same Client were afforded flexibility including hybrid working.  Consequently, the Complainant is seeking compensation from the Respondent for breaches of its obligations under the Act.

Summary of Respondent’s Case:

The Respondent wholly refuted the Complainant’s contention that her request for remote working had not been processed within the requisite statutory period, that her needs as an employee had not meaningfully been considered, or that the Client’s contractual stipulation that the role be on-site was not substantiated.

The Respondent acknowledged that Sections 20 and 21 of the Work Life Balance and Miscellaneous Provisions Act 2023 and the underlying Code of Practice provide for an employee’s right to request remote working and a process by which an employer should consider that request having regard to: "21(1)(a)(i) his or her needs, (ii) the employer's needs, and (iii) the requirements of the Code of Practice" and either approve the request or refuse the request setting out the reason/s for the refusal.  The Respondent contends that its process for considering the Complainant’s application for remote working was fair, objective and reasonable and in compliance with both the Act and the Code of Practice.  In this respect, the requisite HR decision-makers were present and attested to the Respondent’s position as follows:

• In relation to the timing of the Complainant’s request for remote working on 3rd April 2024, the Respondent had received a large volume of 72 applications for remote working and had set up a HR team dedicated to processing them. They had met individually with these employees to understand their requirements, before assessing client needs and contractual commitments and responding. 

• As evidenced by the exchange of correspondence set out above, various members of the HR team had met with the Complainant and given serious consideration to her application for remote working in the context of her own particular needs and the duties in which she was engaged. Specifically, on 29th April 2024, an Employee Experience Manager had met with the Complainant to obtain information about the individual factors relevant to her application and the suitability of a remote working arrangement.  She had raised questions relevant to the Complainant and completed a health and safety questionnaire.  Once this information was gathered, her application for remote working was individually considered by the HR team in accordance with the guidance provided by the Code of Practice including an assessment of both the Complainant’s and the Respondent’s needs.  Specifically, the team had followed the Code of Practice in relation to an assessment of the suitability of the Complainant’s role for remote working.

• During the meeting of 29th April 2024, the Employee Experience Manager had verbally informed the Complainant that the Respondent would require further time to process her application given the large volume of requests. At that time the Complainant had raised no objection to an extension of time. 

• By letter dated 9th May 2024, the Respondent wrote to the Complainant as set out in full above in accordance with the requirements of the Act confirming that her application for remote working had been refused. The reason given was that the Respondent has a contract with the Client for the operation to which the Complainant is assigned, stipulating that the associate duties must be performed at the Client's facility.  The precise contractual arrangements were elaborated on in written submissions and at the hearing.  It was explained that the Respondent is part of a US multinational information technology services and consulting group of companies and provides technology services to clients (third parties) with contractual service level restrictions.  One of these contracts is a managed service to a large multinational technology company, the Client herein.  The Respondent's contract with the Client is governed by service level agreements and statements of work in relation to specific work areas / projects.  The statement of work for the role in which the Complainant is employed as a Senior Process Executive has a stipulation that duties must be performed at the Client's facility in Eastpoint Business Park, Dublin 3, using the Client owned and provided tools and systems.  Workspaces are provided by the Client on the basis that they provide a collaborative and productive working environment.  The nature of the work is sensitive and requires a high level of attention to detail, application and interpretation of policy to ensure the quality of data.  If this detail is incorrect it can adversely impact on the health and safety of the end user and cause reputational damage to the Client.  There is provision for ad hoc flexibility around work location if and when a business need arises.  The retention of this contract by the Respondent is dependent upon fulfilling the Client’s requirements.

• Owing to this contractual stipulation, it has not been possible to accede to the Complainant’s application for remote working. It was confirmed that requests for remote working from all similarly situated employees had been treated likewise.  In response to the Complainant’s contention that other employees working for the same Client had been accommodated with hybrid working, it was clarified that this pertained to a different team undertaking a different role.  A HR Head confirmed that on foot of the large volume of remote working requests, strenuous efforts had been made to persuade its Client to adjust its service requirements to enable its employees to work remotely but this had not been successful.  He said that if there was any way he could accommodate the Complainant with remote working he would.  The Respondent’s evidence in this respect was not strenuously challenged.

• Issue was taken with the Complainant’s insistence that proof of this contractual stipulation be provided given the relationship of trust between the Parties and the fact that the contract contains sensitive commercial information. It was explained that a breach of its confidentiality obligations to the Client would have serious implications for the Respondent and all its employees including the Complainant. 

• The letter of 9th May 2024 further confirmed that the Respondent was open to discussing alternative shift patterns or other reasonable accommodations which could help the Complainant's situation. The letter also provided for an appeal process which was availed of by the Complainant on 13th May 2024.

• Following an appeal meeting on 27th May 2024 with the Complainant, an outcome letter dated 11th June 2024 confirmed the rejection of her appeal and the reason for refusal as set out in full above. Additionally, the Complainant was offered alternative support for the issues outlined in her appeal.

• It was confirmed that there had been efforts to find another role for the Complainant which would be conducive to remote working but to date, this had been unsuccessful. It is open to the Complainant to apply for internal roles that are conducive to remote working and the Respondent will continue to engage with the Complainant and support her in finding an alternative role on a different project.

Finally, the Respondent relied upon Section 27(6) of the Work Life Balance and Miscellaneous Provisions Act 2023, providing that an Adjudication Officer shall not assess the merits of the decision or reason/s given for refusal by an employer following consideration of an employee's request for remote working.

Findings and Conclusions:

It is necessary to set out the relevant statutory provisions before applying to the factual matrix.  By way of background, EU Directive 2019/1158 on Work Life Balance for Parents and Carers lay down the minimum requirements aimed at achieving equality between men and women in the workplace by facilitating the reconciliation of work and family life for parents and carers.  It was transposed into Ireland by the Work Life Balance and Miscellaneous Provisions Act 2023 against a backdrop of changing work practices following the Covid-19 Pandemic.  In addition to adopting the minimum requirements of the Directive, it provided all employees with the right to request remote working and to have same considered by their employer.  The Act also provides employees with protection against penalisation for making a request for remote working.

Section 20 of the Act provides for the right of employees to request a remote working arrangement:

“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 provides an obligation on an employer to consider a request made under Section 20:

“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.”

Section 27 provides for the referral of complaints to the WRC (appeal to the Labour Court) and redress that may be awarded including a direction to comply with Section 21(1) and/or up to 4 weeks’ remuneration:

“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)…  [Note; Section 27(2), (3) and (4) are omitted as not applicable to the instant case.]

(5) An award of compensation referred to in subsections (1)(c), (2), (3)(c) or (4) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

(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.

(7) In this section, “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

The WRC devised a Code of Practice pursuant to Section 3(1) of the Work Life Balance and Miscellaneous Provisions Act 2023 to provide practical guidance for the making and consideration of flexible and remote working requests including guidance on best practice principles throughout the decision-making process.  This was incorporated into law by S.I. No. 92/2024 - Work Life Balance and Miscellaneous Provisions Act 2023 (Workplace Relations Commission Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working) Order 2024.  Section 21(1)(a)(iii) of the Act expressly requires consideration of the requirements of the Code of Practice.  In particular, the Code provides: “An employer who receives a request for RW must considerthe request having regard to: - their own needs, i.e. 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.”  Along with other guidance, it provides a non-exhaustive list of factors that may be considered when assessing the suitability of a particular role and employee for remote working.  Employers are required to be mindful of other statutory entitlements and obligations that may arise.  In situations where an employer cannot approve a request for remote working, the Code requires the parties to consider an alternative working arrangement where feasible.  It also provides employers with useful guidance on developing a Work-Life Balance Policy and Template Applications for employees.

It is necessary to adjudicate on three issues arising from this complaint being: (1) whether the Respondent’s omission to notify the Complainant in writing of the extension of time constitutes a breach of the Act meriting redress; (2) whether the Complainant’s needs were considered and (3) whether the Respondent’s reliance upon a contractual term with the Client requiring employees to work on-site is substantiated.

In relation to the first issue, Section 21(2) of the Act provides: “(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.” and Section 21(1)(b)(iii) provides: “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.”  On a plain reading of these statutory requirements, where an employer is having difficulty assessing the viability of a request for a remote working arrangement, it should provide a notice in writing to the employee of an extension of the 4 week period for a further specified period not exceeding 8 weeks.  In the instant case, the Complainant submitted her request for remote working on 3rd April 2024 and received a first instance decision on 9th May 2024, being some 5 weeks later and well within the maximum 8 weeks allowed for the process.  As her proposed start date was 3rd June 2024, she was not prejudiced by the additional week taken.  It was not in issue that she had been verbally informed of the requirement for an extension of time at the meeting of 29th April 2024 within the 4 week period.  Therefore she had not been taken by surprise by the additional week.  As she did not raise this issue on appeal, it had not been an obvious concern.  Given that the Respondent was processing a large volume of applications for remote working at the material time, I do not consider it unreasonable to require more time.  Accordingly, I find that this technical breach of Section 21(1)(b)(iii) of the Act did not impinge on the Complainant’s right to either make a request for remote working or have her request considered, being the protected rights under the Act.  Whilst an Adjudication Officer may direct action or award compensation in relation to any breach of Section 21(1), I do not consider this to be just and equitable having regard to all the circumstances.

In relation to the second issue, I am satisfied that the Complainant’s individual needs were considered by the Respondent during the decision-making process as required by Section 21(1)(a)(i) of the Act.  I am persuaded by the fact that the Respondent went further than the basic statutory requirements and afforded each applicant for remote working, including the Complainant, a one-to-one meeting to discuss their application, and an appeals process in accordance with best practice principles.  Arguably, once the Respondent was constrained by its contractual clause with the Client from acceding to the application, it was unnecessary to expressly set out consideration of the Complainant’s individual needs as omitted from the initial letter of refusal dated 9th May 2024.  However, the appeal outcome of 11th June 2024 included a detailed consideration of same, thereby remedying any perceived lacuna in the first letter as follows:

1. Commute: Cognizant offers TaxSaver commuter tickets which we would encourage you to avail of.  We are also happy to discuss flexible working arrangements such as different shift patterns or any other reason(able) accommodations which can help your situation.
2. Financial impact: Cognizant is partnered with (a Bank)who hold finance talks with our associates so we would encourage your participation in the next scheduled event.
3. Family responsibilities: In terms of work life balance, we would encourage you to avail of the lifestyle benefits that Cognizant offers which can be found in the HUB tool.
4. Productivity: We can organise for a discussion with your managers to work with you to look at how we can reduce the distractions.  We would be open to discuss any suggestions you have.
5. Health Concerns: There is support available to you for example, the Employee Assistance Program for free confidential counselling, resources and information.  You will find the details in the email attachment.

In relation to the third issue, being whether the reason for the Respondent’s refusal of the Complainant’s application for remote working is substantiated, the Respondent relies upon Section 27(6) of the Work Life Balance and Miscellaneous Provisions Act 2023, providing as follows in relation to the decision/reasons:

“(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,…”

Much has been written in relation to this provision and the number of unsuccessful complaints under this Act to date, the contention being that the legislation is ‘toothless’ and ineffective owing to its inclusion.  However, it is necessary to interpret the Act in its totality and in light of its intended purpose.  On a holistic reading of Section 21(1) with Section 27(6), unless a rational basis is provided for the refusal of a request for remote working supported by the particular factual matrix, the employer cannot be said to have complied with Section 21(1)(a) of the Act and considered an employee’s request for remote working “having regard to- (i) his or her needs, (ii) the employee’s needs, and (iii) the requirements of the code of practice,…”  Nor could it be held that an employer had complied with the requirement of the Code of Practice to “consider a request for RW in an objective, fair and reasonable manner.”  It follows that it will not be sufficient for an employer to give ‘lip service’ to a request for remote working and provide sham reason/s for refusal and reason/s arising from a consideration of the employee’s and employer’s respective needs will be required.  To this extent it will be necessary for an Adjudication Officer to be satisfied as to the credibility of the reason/s given for a refusal.  Each case will turn on its own particular facts and once satisfied as to adherence with the requirements of Section 21(1)(a)(i),(ii) & (iii) of the Act and the Code of Practice, it is not for the Adjudication Officer to look behind the decision or reason/s given.  To interpret the legislation otherwise would render it nugatory and contrary to its intended purpose.  It is noted that in addition to an award of compensation, an Adjudication Officer may direct compliance with Section 21(1).

I therefore consider it within my remit to assess the reason given for the refusal of the Complainant’s application for remote working in order to determine compliance with Section 21(1)(a)(i),(ii) & (iii) of the Act and the Code of Practice.  The reason given by the Respondent for the refusal of remote working in the instant case is a contractual stipulation with its Client that the Complainant works on-site.  Given how easy it might be for an employer to cite an undisclosed contractual stipulation with a third party as a basis for the refusal of a remote working request, the credibility of same is paramount.  As the reason cited has a nexus to a consideration of the Respondent’s business needs, having also considered the Complainant’s needs and is supported by the factual matrix, I am satisfied on the balance of probabilities as to the credibility of this reason and thus compliance with Section 21(1)(a)(i),(ii) & (iii) of the Act and the Code of Practice.  In particular, I am persuaded by the credible evidence given of the existence, detail and rationale for this contractual stipulation.  I find the rationale provided to be reasonable, especially given the sensitive and detailed nature of the work requiring on-site control and oversight.  I also accept the HR Head’s evidence that the Respondent made strenuous efforts to persuade its Client to adjust its service requirements to enable its employees to work remotely but this had not been successful.  I further note that all employees working within the Complainant’s team were treated likewise and employees on another team afforded more flexible working arrangements are distinguishable by the nature of their role.  This was not strenuously challenged on behalf of the Complainant, the main issue being that a copy of the contract clause/s in question had not been furnished.  Given the commercially sensitive nature of contracts with third parties and ‘class’ nature of this complaint, I do not consider this refusal to be unreasonable. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant provisions.  For the aforesaid reasons, I find that the technical breach of Section 21(1)(b)(iii) of the Work Life Balance and Miscellaneous Provisions Act 2023 as outlined above does not merit any redress.  I further find that there were no other breaches of Section 21(1) of the Act.

Dated:   17-06-25

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 20, 21 & 27 of the Work Life Balance and Miscellaneous Provisions Act 2023 & S.I. No. 92/2024 - Work Life Balance and Miscellaneous Provisions Act 2023 (Workplace Relations Commission Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working) Order 2024 – refusal of an application for remote working - failure to give notice of extension of time - merits.