24 January 2025
Changes in the approach of employers to remote working policies are causing a stir at a global level, and recent Irish case law is reflecting the flexibility permitted and the dynamic nature of employers’ reactions to remote working requests.
In this article, we examine some of the case law in this area and explore the future landscape for remote and hybrid working in Ireland.
In March 2024, we highlighted the introduction of the Work Life Balance and Miscellaneous Provisions Act 2023 (the ‘Act’)[1]. We also highlighted the new Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working (the ‘Code’). It is almost a year since the introduction of the Code which provides guidance to employers and employees on the right to request flexible working arrangements for caring purposes and the right to request remote working.
Recent announcements by global employers requiring hybrid employees to return to the office five days a week, can be seen as an indication of a move away from hybrid working arrangements to perhaps more of a traditional office-based approach. At a national level we are seeing a move towards a process led approach to decisions of the Workplace Relations Commission (‘WRC’) whereby the focus of adjudicators is on the way a remote working related request is handled rather than the merits of the request itself.
This approach is based on the fact that while the Code provides employees with a right to request remote working, it in no way provides a legal right to work remotely. Employers can ultimately refuse such a request, provided they give due consideration to the request and follow appropriate steps upon its receipt.
Clear communication about the decision-making process and the reasons for approving or denying remote working requests can help avoid misunderstandings and create a more positive work environment. Employers should follow the timelines and advice specified in the Code when managing remote working requests. This involves responding to requests within the designated timeframe and providing reasons for any decisions made. Adhering to these guidelines not only ensures legal compliance but acknowledges an employee's request and the integrity of the process.
In what is considered as one of the first decisions following the introduction of the Code, the WRC held in the employer’s favour in the 2024 case of Karabko v TikTok Technology Ltd[2]. The decision involved a detailed examination of the employer’s denial of a full-time remote working request.
In refusing the request, the employer relied on its belief that in-person presence is crucial for team engagement and effective training, and that exclusively working remotely would have a substantial adverse effect on these benefits. The matter was escalated to the WRC by the employee who continued to work remotely on a full-time basis resulting in her receiving a verbal warning.
The employee’s reasons for her request related to her working with teams based in North America and Canada; the distance she would have to travel to the office; and, that she had no accommodation in Dublin.
The respondent employer highlighted that the employee was attempting to have the WRC review the validity of the employer's decision to deny the remote working request, which is prohibited by the Act and reaffirmed by the Code.
The Adjudication Officer confirmed that their authority is confined to evaluating whether the employer, in reviewing a request, complied with the Code and Section 21 of the Act. The Adjudication Officer in their decision noted that 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 WRC’s role does not extend to assessing the merits of the employer's decision itself. Employers are not obliged to provide remote working options for an employee, regardless of personal circumstances, provided that they have adhered to the required procedures and considered the request in line with the Code.
The December 2024 decision in Osorio v Cognizant Technology Solutions Ireland Limited[3] underscores the approach of the WRC on remote working requests. In this particular case, the complainant employee made a request for remote working in March 2024. This was denied by his employer, and subsequently denied on appeal. This decision was upheld by the WRC.
The employee highlighted the distance he had to travel to work and that his role required collaboration with colleagues in Latin America. This resulted in his working hours on Monday to Friday being from 4pm to 1am. This, along with his desire to balance the responsibilities of his job with caring for his 10-year-old daughter, were the bases of his request for hybrid remote working. When his request was rejected, the complainant felt he had received a generic response with “little consideration for his individual situation”.
The complainant’s request was refused along with 72 other Irish based employees. The Adjudication Officer found in favour of the employer noting that the employer considered the complainant’s application to work from home in accordance with the requirements of Section 21 of the Act.
As with many evolving areas of employment law, communication is key. Employers cannot make decisions on remote working in the abstract and employees cannot presume that their personal reasons for remote working will take precedence over a business’ needs and productivity considerations.
Employers who take a reasonable evidence based, procedural approach to remote working requests should be able to defend the denial of requests, however, each request needs to be considered in detail and in line with the Code. Employers are reminded that records of any such notices or requests for remote or flexible working should be retained for a year.
Records of a refusal should be retained for one year and records of approved remote working requests must be kept for three years. An employer who fails to retain records is liable on summary conviction to a fine of up to €2,500.
Related to but broader than the application of the Code, the 2024 case of Naude v. UCC[4] reminds employers of the importance of fair procedures, as to ignore such can be very costly. In this case the former employee, Dr Naude, a Dutch academic, having worked remotely due to the pandemic, was dismissed for having failed to relocate to Cork.
The employer took the view that by failing to relocate, Dr Naude continued to frustrate the requirements of his contract of employment to such an extent that UCC had no confidence that he would be in a position to meet the conditions of his employment on an ongoing basis. Dr Naude was awarded €300,000 by way of compensation under the Unfair Dismissals legislation.
This award is notable not only for its size, being one of the largest ever made by the WRC, but also for the awareness it brings to the necessity of fair procedures and the complexities that can follow temporary remote working arrangements.
Our Employment Law team can advise on the preparation of remote working policies, provide guidance on handling remote working requests, assist with WRC claims and give direction on how the Code of Practice will impact your HR operations.
Please contact a member of the team for more information.
[1] Right to request flexible and remote working
[2] [ADJ-00051600]
[3] [ADJ-00052414]
[4] [ADJ-0042625]
