Legal battles under way at WRC as employers line up to roll back on remote work

This article was first published in the Irish Independent on Monday 7 October 2024.

You have the right to request to work from home, but that doesn’t mean you’re going to get it

Working from home is fast becoming a battleground it seems, as it was revealed that 22 complaints relating to employee requests under new laws have already been lodged.

A senior A&L Goodbody partner is currently advising a number of multinational employers on claims already before the Workplace Relations Commission (WRC), relating to workers’ remote working requests – and expects more decisions soon.

Michael Doyle, partner and head of A&L Goodbody’s Employment law group, was speaking after a worker lost what is believed to be the first case taken under new legislation that gives workers the right to request remote working.

A&L Goodbody represented TikTok Technology Ltd after an employee, Alina Karabko, made a complaint when her request to work remotely on a full time basis was turned down.

Ms Karabko had worked fully remotely during the pandemic and made the request in July last year, after her employer had informed staff they were required to return to the office for at least three days a week from October 9.

She submitted a request to continue working remotely full-time, rather than return to the Dublin office, but it was refused.

Ms Karabko told the WRC she had no accommodation in Dublin, and had to wake at 3am for a two-and-a-half-hour commute.

‘Employees enjoy the right to request remote work, but not the right to remote work’

Adjudication officer Marie Flynn found the complaint was not well founded as TikTok had complied with its obligations under the legislation.

She said the employer treated her request very seriously.

“It was an interesting case to be involved in, and is helpful to employers in reiterating that employees enjoy the right to request remote work but not the right to remote work,” said Mr Doyle.

He said a significant number of WRC claims were lodged within a matter of days of a code of practice on the right to request remote working coming into force.

The legal expert believes some employers are looking to roll back on the flexibility that was given to employees during the Covid pandemic.

“This is giving rise to workplace tension, as employees have got used to this flexibility – and in many cases have made life decisions around it. This means the impact of a less-flexible remote working policy in the future can be very material,” he said.

He said some employees will vote with their feet, while others will submit statutory requests for remote working and litigate if they do not believe those requests have been lawfully considered.

Amazon recently told its staff it wanted them to return to the office five days a week from January. It has been reported that 73% of the retail giant’s workers are considering quitting due to this in-office order.

Up to September 19, the WRC had received 22 complaints under the new right to request remote working legislation, the Worklife Balance and Miscellaneous Provisions Act.

A Department of Enterprise, Trade and Employment spokesperson said two of these cases have been adjudicated and decisions issued; others have been withdrawn; and the rest await mediation or a hearing by an adjudication officer.

Meanwhile, a Department of the Taoiseach spokesperson said there is no official monitoring of the government target to move to 20% remote working across the public service . 

However, he said departments have been advised they should aim to achieve this goal.

A Revenue spokesperson said almost 5,550 or 80% of its staff are availing of blended working arrangements.

The remaining 20%, or approximately 1,400, have chosen not to apply, or are not eligible to apply, due to the “essential on-site nature” of their role.

This could include staff working on “frontier enforcement”, according to the spokesperson.

She said Revenue has achieved targets set out in a Civil Service Blended Working Policy Framework, and this has been the case since September 2022.

Staff availing of blended working at Revenue typically work remotely for two or three days a week.

I am not empowered to investigate the merits of a decision made by an employer where a request for remote working has been refused

“Revenue’s blended working arrangements have been successfully bedded in, and strike the required balance between the business needs of the organisation and the opportunities for staff to avail of a better work-life balance,” she said.

Workers who may consider lodging complaints relating to their right to request remote working may be interested to note WRC adjudication officer Marie Flynn’s remarks in the TikTok case.

She said her role is strictly limited to assess whether an employer considered a request for remote working in line with the legislation and code of practice.

“I am not empowered to investigate the merits of a decision made by an employer where a request for remote working has been refused or where a request has been granted but is not in line with the employee’s preferred pattern,” she said.

An employer who receives a request for remote working must consider the request, while having regard to the needs of the employee and the needs of the business.

Workers can request remote working after starting a new job, but must have six months service before the new working arrangement begins.

Date published: 7 October 2024