In these circumstances the employer must have regard to both the Workplace Relations Commission Code of Practice and the Employment Equality Acts, 1998 – 2025 and must also adhere to their obligations under the Work Life Balance and Miscellaneous Provisions Act 2023.

A recent decision of the Workplace Relations Commission Adjudicator, Michael McEntee, in the case of Zaurbek Musaev v TikTok Technology Limited ADJ-00052437 was dismissed and found to be “not properly founded” and must fail.  

In that case, Mr Musaev commenced working at TikTok in Dublin in August 2021 and at the date of the hearing on January 7th continued to work for TikTok.  His complaint related to the fact that his application for full time remote working had not been treated lawfully. Mr Musaev resided in Monaghan and was commuting to work in Dublin by car or public transport. In 2020, Mr Musaev was in a serious car accident and at the hearing he alleged that he suffered from post-traumatic stress which prevented him from travelling. Mr Musaev argued that, in his opinion, the quality of his work would not be impacted by remote work and suggested that it would in fact benefit his employer. TikTok submitted that flexibility regarding remote working can be permitted however this would be subject to the “overall acceptance that the Dublin office is the place of work identified by the Employment contract”. TikTok maintained that they had fully discharged all their obligations under the Work Life Balance and Miscellaneous Provisions Act 2023 in their decision to refuse Mr Musaev’s application for remote working and accordingly the case must fail.

Under section 21 of the Work Life Balance and Miscellaneous Provisions Act 2023, the employer has an obligation to consider the employees request for remote work however there is no obligation to accept such a request. When reviewing an application for remote working, employers must consider their own needs, i.e. the organisation's needs, the individual employee’s needs i.e. the individuals own reasons for requesting remote working and must also have regard to the Code of Practice. The Code of Practice provides that the employer should consider remote working requests in an objective, fair and reasonable manner. The employer has a 4-week window (which can be extended to 8 weeks) to either accept or refuse an application for remote working. If the request is being refused, the employer must provide a notice in writing to the employee setting out the reasons behind the refusal.

The decision of Adjudication Officer Mr McEntee confirmed that the remit of his scope under the Work Life Balance and Miscellaneous Provisions Act, 2023 was to interrogate whether or not TikTok had adhered to the provisions of the legislation and the Code of Practice in dealing with the request for remote working and that in particular Section 27 of the Work Life Balance and Miscellaneous Provision Act precluded an Adjudication Officer from “assessing the merits of the decision or the refusal by an employer of an application”.

In that case, Mr McEntee found that TikTok had “clearly properly observed” their legal obligation under the Work Life Balance and Miscellaneous Provisions Act 2023 and therefore it was not open to him to assess the merits or otherwise of an employers decision or refusal.

The case is another reminder of the limits of the provisions of the Work Life Balance Act.

As we have seen from the caselaw coming through the WRC dealing with remote and flexible working requests, it is an area that HR practitioners are encountering regularly and continues to present challenges.  The Code of Practice sets out the factors to be considered in assessing the merits of an application and a decision of the WRC from 2021 is instructive in respect of the query at hand.  In the case of Sarah Tracey -v- Centz Retail Holdings ADJ-0003702, Ms Tracey, a Solicitor, was refused remote working arrangements after informing her employee in writing of her diagnosis with attention deficit hyper activity disorder (ADHD). Ms Tracey submitted that she found working in the office unsuitable due to the noise and interruptions, and sought a flexible working arrangement with her employer, requesting to work from home on occasion and not on a permanent basis. However, her employer refused this request.

When making her remote working request, Ms Tracey provided her employer, Centz, with a psychologist’s report which recommended that it would be beneficial for her to work from home for a proportion of the week and proposed that in addition to this, she should be provided with a private office space for the days that she would be in the office. On receipt of this report, a cash office in an Industrial Estate building was made available to Ms Tracey however her work from home request was continuously refused by Centz. Her employer submitted that “she could carry out her work free from distraction and would be free to move about as required” in the cash office. However, after attempting to work in the proposed office space, Ms Tracey maintained that the cash office was wholly inadequate from an IT perspective and was unsuitable because of noise and regular interruptions. Centz made no alternative offer of a private workspace and continued to refuse her remote working request.

A grievance complaint was made by Ms Tracey for the continued refusal to provide reasonable accommodations for her disability however this was dismissed by Centz stating that their Policy did not allow for work from home arrangements. It was asserted by Ms Tracey that her employer failed to conduct any form of individualised assessment, and they did not make any enquiries or refer to a medical practitioner. It is notable that in the past, Ms Tracey was permitted to work from home in the late stages of her pregnancy due to Covid concerns. A direct comparison was also drawn between Ms Tracey and another employee, who did not have a disability, but was permitted to work from home. On foot of this, it was argued that accommodations could be made but the employer was choosing not to do so in this instance.

It was accepted by all parties that ADHD constituted a disability under section 2 of the Employment Equality Act, 1998. It was also undisputed that work from home allowances were made in the past to Ms Tracey and were currently being made to an employee without a disability. The Adjudication Officer noted that under Section 16(3)(b) of the Employment Equality Act, 1998, there is an obligation on the employer to take “appropriate measures” to accommodate employees with disabilities, provided that such accommodations do not impose a “disproportionate burden” on the employer. These must be assessed on a case-by-case basis and a “proactive approach” must be taken by employers.

While this decision pre-dates the Code of Practice, in that case the Adjudication Officer found that the employer had failed to provide reasonable accommodation as required under the Employment Equality legislation for Ms Tracey’s disability, thereby discriminating against her. Her employer did not present evidence of any assessment made by them in terms of her remote working request, did not have regard to the psychologist’s recommendation to allow Ms Tracey to work from home on occasion and failed to assess Ms Tracey’s individual needs.

In that case, the Adjudication Officer awarded Ms Tracey €5,000 for failure to make reasonable accommodation for her disability. Accordingly, employers should ensure that all policies for remote working are assessed in accordance with the organisation's internal policy which adheres to the WRC Code of Practice and sets out the application procedure, applicable timelines and issues to be considered in considering a request.  Strict adherence to the policy will help avoid an employer falling foul of the Code of Practice and also assist in managing employee expectations.  The policy should be clear that each request received will be assessed on a case-by-case basis taking into account the employee's particular role and the specific reasons for the request including accommodating personal needs.

The recent case of Thomas Farrell v Salesforce ADJ-00052842 marks the first award of compensation given under the Work life Balance and Miscellaneous Provisions Act 2023 for a breach of the employers obligations in responding to a request for remote working under the Act. This case highlights that employers must deal with any remote working requests and must adhere to their obligations under Act and must have regard to the WRC Code of Practice. On the 10 June 2024, Mr Farrell submitted a remote working request to his employer requesting a continued work from home arrangement. However, his employer, Salesforce, failed to respond to his request within the requisite 4-week period provided for in the 2023 Act. Salesforce responded to the request on the 11 July 2024, which was 2 days later than was permitted in the Act seeking an extension to deal with the remote working request and claimed that the delay was “attributable to human error”. Under section 21 of the Act, the employer is entitled to extend the response time to 8 weeks however written notification must be given to the applicant within 4 weeks of receiving the remote working request which Salesforce failed to do in this instance. Salesforce argued that they had in fact responded to the remote working request within the 8-week deadline stipulated in the Act however the Adjudication Officer focused on the initial 4-week period. The Adjudication Officer found that “in the absence of any compelling reasons having been provided by the Respondent for the failure to consider the request within the four-week deadline under the Act which expired on 9 July 2024, this complaint is well founded”. The employer was found guilty of delay in responding to the application and Mr Farrell was awarded €1,000 for this “minor” 2-day breach.

Employers must be vigilant and must ensure they respond to a remote working request within the 4-week deadline period provided for under section 21 of the Act. A key takeaway for employers from this case is that a “minor” breach, namely the 2-day delay in response to the employee’s remote working request, still amounted to breach and “human error” was not considered to be a sufficient excuse in the circumstances. Accordingly, time limits must be adhered to, and employers must ensure that they respond to the employee within 4 weeks of the request.

While recent months may have seen some companies transitioning from remote work to a stronger focus on hybrid or in-office presence, hybrid and remote working remains both the norm and the expectation in most companies presenting both opportunities and challenges for businesses.

It is important that employers have clear policies in place and carefully adhere to the procedures outlined therein in order to avoid legal challenge.

This article was written by Michelle Ryan, with contributions from Helen Coughlan, trainee solicitor at RDJ.