“Our organisation has been very flexible about allowing employees to work remotely from home since the Pandemic. However, now we want to see employees back in the workplace more regularly and so we have implemented a hybrid working arrangement, with 3 days in and 2 days working remotely each week. A number of employees are refusing to return on that basis and wish to remain fully remote. How does an employer handle an employee’s refusal to return to work in the office after working from home?”

Introduction

Without a doubt, the Pandemic has brought about huge changes in the way we work and remote working has led to a fundamental shift in how and where work is done, with lasting implications for businesses and employees alike. The future workplace is undoubtedly going to be more flexible. For the last number of years, arrangements have been somewhat fluid, with employers waiting for legislative changes around the request for remote and flexible working and taking time to design their future work arrangements more formally. Organisations also need some level of certainty in how and where work is being done and therefore it has become the norm for hybrid working arrangements to be introduced on a more formal basis over the last number of months, with a requirement for workers to spend some time every week in their workplace and some time working remotely (usually from home). But what can organisations do about employees who refuse to return to the workplace under these new formal arrangements?

Examine the Reasons

The first step for an employer when handling a refusal to return to the workplace, is to adopt a balanced approach. Here are some steps to consider.

1. Understand the reasons – is the refusal based on any health concerns that might require the involvement of occupational health professionals to understand if there are any employment equality considerations?
2. Review your company policies and procedures – which policy is relevant to the situation and does the policy address refusals to return to work and, if so, what are the steps that should be followed?
3. Evaluate whether a compromise can be achieved – discuss with the employee their reasons for refusal to return and see if a compromise can be reached?
4. Establish if the employee is making a request under the new legislative right to request remote and flexible working and, if so, deal with that request under the obligations in the legislation and the related Code of Practice on Flexible and Remote Working (“the Code”) which came into effect on 7 March 2024.

Subject to considering the matter under the above steps, where an employee refuses to return to work without good reason, it could be deemed an unauthorised absence and/or a matter meriting  disciplinary action under the organisation’s Disciplinary Policy. Whilst disciplinary action might be merited, rushing into such action without considering the steps outlined above could damage the relationship between the employer and employee, have a detrimental impact on the business and expose the employer to claim(s) in the Workplace Relations Commission (“the WRC”).  Under the Code, the WRC suggests that issues around remote/flexible working arrangements should initially be dealt with through the company grievance policy prior to being referred to the WRC although complaints can be submitted to the WRC at any stage during the process.

The Code of Practice on Flexible and Remote Working

The majority of employee working arrangements, and many hybrid working policies introduced by employers, predate the Code’s introduction and so our experience is that where an employee has had a fully remote working arrangement since the Pandemic, and is now being asked to return to the workplace for some period of time each week, a request to remain fully remote is being made by the employee pursuant to their legislative right to do so and under the provisions of the Code.

Employers need therefore to review their existing policies in light of the Code and determine whether amendments need to be made. The Code introduced a statutory right for all employees to request remote/flexible working arrangements or propose changes to their existing arrangements, irrespective of when the arrangements began.  Whilst employees can apply from day one of their employment for flexible or remote working arrangements as provided for in the Code, in both situations the employee must have at least 6 months continuous service before an arrangement can commence.

Employers who already have a policy in place around the right to request flexible, remote or hybrid working arrangements, which pre-dates the introduction of the Code, should consider renaming the title of their policy to “Work-Life Balance Policy” to bring the policy in line with the Code. Whilst failure to follow a code is not an offence, both section 20(9) Workplace Relations Act, 2015 and section 31(9) of the Work Life Balance and Miscellaneous Provisions Act, 2023, provides that in any proceedings before a Court, the Labour Court or an Adjudication Officer of the WRC, a Code of Practice shall be admissible in evidence. The “Work-Life Balance Policy” might also be the appropriate place to set out the organisation’s right to disconnect, in accordance with the Code of Practice on the Right to Disconnect.

The Code defines “flexible working” and “remote working”. The right to request flexible working is only open to certain eligible employees with defined caring responsibilities and refers to an arrangement whereby an employee’s working hours or working patterns are adjusted, including using remote working arrangements, flexible working schedules or reduced hours. To qualify for flexible working, the employee must be a person eligible for parental leave(s) and the child must not be older than 12 years of age or 16 years if the child has a disability, or, an employee providing care to a specified person who is in significant need of care or support.

Remote working is open to all employees and refers to an arrangement where all or some of the work ordinarily carried out by an employee at the employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without changing the employees ordinary working hours or duties.

The Code outlines the processes used for employees to apply for flexible and remote working;  sample forms to submit the request, what the employer needs to consider when they receive a request, and the process by which both the employer and employee can terminate an arrangement. If the request is denied or a termination notice is issued, the employee must wait 12 months before they can re-apply for an arrangement.

The Code sets out the factors which the employer must have regard to when they receive a request for remote and flexible working arrangements from an employee as follows:

• their own needs, i.e. the business needs.
• the employee’s needs, i.e. their reasons for requesting RW/FW.
• the requirements of the Code in relation to considering a request.

An employer needs to consider each request in an objective, fair and reasonable manner. Where an agreement is reached on a remote or flexible arrangement, the signed agreement by the employer and the employee should be appended to an employee’s contract of employment and a copy should be retained by both parties.  It will serve as an addendum to the contract of employment.

An employer and an employee can agree, in writing, a change to an arrangement that has already been signed, before or after it has started. Such a change can :

• postpone the arrangement or part of it to an agreed date.
• curtail the period of the arrangement.
• vary the arrangement in an agreed way.

Under the Code, an employer must keep a record of all approved flexible and remote arrangements taken by employees. The record must be kept for three years and must include:

• the period of employment of each employee.
• the dates on which each employee was on an approved arrangement.
• the number of times each employee was on an approved arrangement.

All notices, or copies of notices, given or received by an employer or employee must also be retained by the employer and employee for one year. Failure to comply with the record requirements can leave the employer liable on summary conviction to a fine of up to €2,500.

The Code does not confer a right on employees to a remote and/or flexible working arrangement – the Code simply confers the right to request such an arrangement. The company needs to consider several factors in determining what level of flexibility is available to each employee and the suitability of each role for remote and flexible arrangements including, but not limited to the following:

• The nature of the work not allowing for the work to be done remotely.
• Cannot reorganise work among existing staff.
• Potential negative impact on quality of business product or service.
• Potential negative impact on performance of employee or other employees.
• Burden of additional costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business.
• Concerns for the protection of business confidentiality or intellectual property.
• Concerns for the suitability of the proposed workspace on health and safety grounds.
• Concerns for the suitability of the proposed workspace on data protection grounds.
• Concerns for the internet connectivity of the proposed remote working location.
• Concerns for the commute between the proposed remote working location and employer’s onsite location.
• The proposed remote working arrangement conflicts with the provisions of an applicable collective agreement.
• Planned structural changes would render any of (a) to (k) applicable.
• Employee is the subject of ongoing or recently concluded formal disciplinary process.

The Code also provides for the termination of an agreed remote or flexible working arrangement and sets out that the parties should consider whether any alternative arrangements other than termination may be feasible, depending on the circumstances of each individual case.

An employer can terminate an approved arrangement in certain circumstances before or after it has started if the arrangement would have, or is having, a substantial adverse effect on the operation of their business, profession, or occupation because of:

• Seasonal variations in the volume of the work concerned.
• The unavailability of a person to carry out the duties of the employee in the employer’s place of business.
• The nature of the duties of the employee in the employment.
• Any other matters relevant to the substantial adverse effect on the operation of the employer’s business, profession, or occupation.

The employer should consider their reasons for terminating the arrangement and ensure they are objective, fair and reasonable in each instance, before issuing a proposal to terminate.

An employer must notify the employee in writing of the proposal to terminate the arrangement and outline, in a clear manner, the grounds for termination. The employer should give the employee 7 days after receipt of the notice to make representations to the employer in relation to the proposal and the employer must duly consider any representations made by the employee in an objective, fair and reasonable manner before deciding to issue the notice of termination.

In such circumstances, an employer can give an employee written notice of termination of an arrangement after considering the following:

• their own needs, i.e. the needs of the business.
• the employee’s needs, i.e. the employees’ reasons for applying for the arrangement.
• the requirements of the Code in relation to considering termination.

After considering the above the employer can decide to issue the notice of termination.

The notice must specify the date on which the employee must return to their original working arrangement and this date must not be earlier than 4 weeks from the date of receipt of the notice of termination. If the employer is issuing the notice of termination due to an abuse of the arrangement, they need only give 7 days’ notice to the employee to return to their original working arrangement.

Once the employer decides to proceed with terminating the arrangement, the employee must return to their original working arrangement on the date stated in the notice.

Conclusion

Where an employee refuses to return to the office under a Company policy, hybrid or otherwise, the employer needs to examine the reasons, as set out at 2 above, any existing Company policies and procedures and the Code, if relevant.

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