The Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) came into force in April 2023. The Act provided employees for the first time with a right to request remote work. The Workplace Relations Commission (WRC) then published a Code of Practice for Employers and Employees on the Right to Request Remote Working (the Code) in March of this year, which gave effect to this right and provided useful guidance in relation to remote working arrangements. Media reports in March suggested the first statutory complaints had been lodged by employees, aggrieved at their employer’s failure to grant their remote working arrangement, within days of the Code being published. These cases are now being heard by the WRC and decisions are being issued.

What is remote working?

Remote working is where some, or all, of the employee’s work is carried out at a place other than the employer’s place of business, without change to the employee’s working hours or duties.

Who can request it?

All employees can submit a remote working request to their employer.

Is there a length of service requirement?

While an employee can submit a request to their employer from the first day of employment, they must have six months’ service before the arrangement commences.

What is the process in relation to remote working requests?

Where an employee submits a remote working request, an employee must furnish any information the employer may reasonably require. The request must:

• be in writing (may be online) and signed by the employee
• specify the days, the date of commencement; and duration requested
• the reasons for the request
• be submitted no later than eight weeks before the proposed commencement
• include details of the proposed location and information on the suitability of the location, as per the Code

After receiving a request for remote working, an employer must consider the request having regard to its needs, those of the employee and the requirements of the Code; and within four weeks either:

• approve the request and enter into a signed agreement with the employee
• refuse the request and provide reasons in writing
• extend the four-week period by a period not exceeding eight weeks where the employer is having difficulty assessing the viability of the request

What are the consequences if an employer fails to adhere to the requirements?

Failure by an employer to comply with its obligations to consider a request for remote working may result in the WRC directing an employer to comply with the relevant sections of the Act, and/or awarding compensation of up to 4 weeks’ remuneration to the employee.

Notably, the WRC can only examine the process and is not entitled to consider the "merits" of any decision made by the employer to refuse a request (including the reasons for reaching their decision). This means that, while the WRC will require strict compliance with the procedures outlined in the Act, it cannot substitute its views for those of the employer in its decision making.

Additionally, employers must keep records of approved arrangements for three years. Failure to do so could result in a fine of up to €2,500.

Have there been any WRC decisions in respect of the remote working requests?

In what is believed to be the first reported case, Alina Karabko v TikTok Technology Ltd, the WRC analysed both the obligations on employers who receive remote work requests, and the remit of the WRC in respect of complaints lodged by employees pursuant to the Act.

What happened in that case?

The Complainant argued that the Respondent:

• did not consider her application for a fully remote working arrangement
• completely disregarded her needs when deciding on her request
• did not consider the request in an objective, fair and reasonable manner

The Respondent rejected these claims in their entirety.

The Complainant commenced employment in early 2022. At the outset of her employment, the Complainant was required to work remotely due to the COVID-19 pandemic (as provided for in her contract). However, in June 2022, the Respondent announced that it was introducing a return to office (RTO) policy. This RTO policy provided for employees to work in the office two days a week whilst encouraging three days on site. The Complainant availed of this arrangement but did not attend the office the other three days of the week and worked fully remotely even though this had not been authorised.

In July 2023, the Respondent announced a planned RTO for all employees not already mandated to return, effective from 9 October 2023. The announcement confirmed that all “employees will be required to work in the office a minimum of three days per week, unless otherwise dictated by local laws or regulations”.

In terms of providing a basis for the RTO policy, the announcement stated: “The Company believes that in-person collaboration inspires creativity and creates irreplaceable value.” On 25 July 2023, the Complainant made an exception request from this requirement. On 30 August 2023, this was refused as, by that time, exceptions were only being considered on the basis of providing reasonable accommodation in respect of a disability and were no longer being granted on the basis of individual exception requests.

The Complainant did not return to the office three days a week from 9 October 2023 as mandated, and shortly after publication of the Code, she submitted an application for fully remote work in accordance with the Act. The Respondent considered the request and ultimately decided to refuse the Complainant’s request, and she was notified in writing of the decision and the reasons for the refusal.

The Complainant subsequently lodged a complaint to the WRC in which she claimed the Respondent had failed to consider her needs when processing her request and, on this basis, she claimed the Respondent’s decision-making process was not carried out in an objective, fair and reasonable manner, as required by the Code.

The Respondent, in response, argued that it engaged in an objective decision-making process and the fact that the Complainant was not in agreement with its decision to refuse her remote work request did not render its decision-making process in breach of the Act and requirements of the Code. The Respondent further argued that to disregard its already existing hybrid working model and consider each individual case on its individual merits could perversely result in a decision-making process that was not “objective, fair and/or reasonable”.

What did the WRC decide?

The WRC decided in favour of the Respondent.

Importantly, the WRC noted the limits of its powers in section 27(6) of the Act, which provides that an adjudication officer is not empowered to investigate the merits of a decision made by an employer where a request for remote work has been declined. The WRC noted its remit is strictly limited to assessing whether an employer considered a request in line with section 21 of the Act and in accordance with the Code.

The WRC observed that section 21 of the Act imposes three specific obligations on employers, as follows:

• employers must consider a remote working request having regard to its needs, the employee’s needs and the requirements of the Code
• employers must either approve a request for remote working or notify the employee in writing of its refusal within four weeks of the receipt of the request, or
• extend this period by a further eight weeks to adequately consider a request, before responding

In reaching its decision, the WRC acknowledged that the Complainant had made a comprehensive case for full time remote work but found that the Respondent had complied with each of the requirements set out in Section 21 and, on that basis, found the Complainant’s case was not well founded.

What are the key takeaways for employers in respect of remote working requests?

Employers who receive a request should consider requests fairly, objectively and reasonably and any decision should take into account the employee’s needs, the employer’s needs and the requirements of the Code. Employers must respond to a request within four weeks or alternatively extend the four-week period by a further eight-week period, if necessary to make a determination. Where an application for remote work is refused, employers must provide notice in writing to the employee setting out the reasons for the refusal.

For any further guidance in relation to remote working, please contact Jason McMenamin or a member of the Employment Practice Group.