In a recent decision of the Workplace Relations Commission (“WRC”) in Alina Karabko v Tiktok Technology...

In a recent decision of the Workplace Relations Commission (“WRC”) in Alina Karabko v Tiktok Technology Ltd ADJ-00051600, the Complainant alleged the Respondent did not fully consider her application for fully remote working arrangements in accordance with the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”) and the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working (the “Code”). The Complainant alleged that the Respondent disregarded her needs in their decision to refuse her request for remote working and did not consider the request in an objective, fair and reasonable manner. The Respondent rejected the claim in its entirety.

Facts: According to the case put forward by the Respondent, the Complainant was employed as a Core Operations Specialist within the Respondent’s Core Operations Team, commencing on 24 January 2022. The Respondent submitted that the Complainants contract, signed in January 2022, provided that her normal place of work would be the Dublin office. However, her contract further stated that due to the covid-19 pandemic the Respondent may require her to work remotely from time to time, which the Complainant did on a full-time basis. The Respondent’s submitted that in July 2022, a non-mandatory Return to Office (RTO) policy was issued, providing for employees to work 2 days from the office, whilst encouraging 3 days on site. However, the Complainant was permitted to work full time from home during 2022 on a discretionary individual basis.

The Respondent indicated there was a further review of the RTO policy in January 2023 and due to the Complainant’s previous exception she was not required to attend the office at that time. However, in July 2023 a planned return to the office for all employees was announced effective from October 2023. According to the Respondent, the announcement stated “The Company believes that in person collaboration inspired creativity and creates irreplaceable value”. The Respondent indicated that the Complainant’s exception request was refused in August 2023 as 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 Respondent told the WRC that on 11 March 2024, the Complainant had submitted a request for fully remote work, setting out in her request that it would reduce her daily commute (which the Complainant previously stated would take 2.5 hours each way) and carbon footprint, it would improve her quality of life and also that there was a lack of suitable accommodation in Dublin for herself and her pet. The Respondent told the WRC that on the 5 April 2024, the Respondent’s HR Business Partners (HRBP) acknowledged the application and advised the Complainant that they required an extension to consider her application fully. The Respondent confirmed to the WRC that on 12 April 2024, it issued a decision setting out that the Complainant’s request had been refused and the grounds for the refusal as follows:

“Our Core Operations department, with 123 Core Ops specialists in Dublin, operates on a hybrid work model. This model promotes 3 days of in-person collaboration in the office and 2 days of remote work. Whilst some duties of this role can be performed from home, there are other essential parts of the job that must be performed from the office, such as team collaboration and knowledge sharing for continuous upskill and performance. The company believes that in-person presence is crucial for team engagement and effective training. Exclusively working remotely would have a substantial adverse effect on these benefits”. 

According to the Respondent the Complainant had responded alleging that the Respondent had not fully considered her request in line with the Act and the Code of practice. The Respondent told the WRC she had also raised queries in relation to the decision itself and the process. The Respondent submitted that the Complainant had been invited to a meeting on 2 May 2024 and that at that meeting it was discussed in detail the reasons for the refusing of the request and the other queries raised by the Complainant. The Respondent indicated that the Complainant was informed of her right to pursue the matter under the grievance procedure, however she confirmed she would not be considering that route. It seems the Complainant subsequently lodged her complaint with the WRC on 6 May 2024, claiming the Respondent had failed to consider her needs when processing her request and alleging a failure to comply with the Act and Code when considering her application.

Decision: The Adjudicator, Marie Flynn, stated the relevant provisions for the purpose of the matter to be considered under the Act was Section 20 which provides for the entitlement of employees to request remote working arrangements.  Section 20 provides that:

(1) An employee may, request approval from his or her employer for a remote working arrangement.

(2) An employee must have completed 6 months continuous employment before a remote working arrangement can commence;

(3) A request for a remote working arrangement shall—

(a) be in writing and signed by the employee,

(b) specify the details of the remote working arrangement requested and the proposed date of commencement and expiration if applicable;

(c) specify, having regard to the code of practice—

(i) the reasons why he or she is requesting approval of the remote working arrangement;

(ii) details of the proposed remote working location, and

(iii) information as may be specified in the code of practice on the suitability of the proposed remote working location,

and

(d) the request must be submitted as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.

 Section 21 of the Act obliges an employer who receives a remote working request to consider the request having regard to a number of criteria and to respond not later than four weeks after receipt of the request:

(a) consider that request, having regard to—

(i) his or her needs,

(ii) the employee’s needs, and

(iii) the requirements of the code of practice,

and

(b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request—

(i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out—

(I) the details of the remote working arrangement, and

(II) the date of the commencement and the expiration, if any, of the remote working arrangement,

(ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or

(iii) where subsection (2) applies, provide a notice in writing to the employee that the employer has extended the 4 week period under this subsection for a further period specified in the notice.

(2) Where an employer is having difficulty assessing the viability of the request for a remote working arrangement, the employer may extend the 4 week period referred to in subsection (1) by a further period not exceeding 8 weeks.

(3) When the agreement referred to in subsection (1)(b)(i) is signed by the employer and the employee, the employer shall retain the agreement and provide a copy of the agreement to the employee who shall retain it. “

The AO outlined that their remit under Section 27(6) of the Act was limited to assessing whether an employer considered a request for remote working in accordance with Section 21 of the Act and the Code. Specifically, that they were precluded from investigating the merits of a decision to grant or refuse a request. The AO referred to three distinct duties on an employer who receives a remote working request, as follows;

First Duty

The employer must have regard to its needs, the needs of the employee and the requirements of the Code of Practice.

In respect of this duty the AO pointed out that on submission of the Complainant’s request, a manager and member of HR of the Respondent’s staff met to consider the application in line with the Act and the Code and the Respondents business plans. The AO referred to the Respondent’s evidence that taking all of the relevant factors into account, the decision was made to refuse the Complainant’s request to work remotely on a full-time basis.  The Adjudicator found that the Respondent had complied with their obligations under Section 21(1)(a) of the Act in this regard.

Second and Third Duties

Under Section 21 (1)(b) of the Act an employer is obliged to either approve a request for remote working or notify in writing its refusal of a request within 4 weeks of receipt. An employer can also avail of an extension of up to eight weeks, which the Respondent in this instance had sought. The Respondent had acknowledged receipt of the Complainant’s request on the 5 April, notified the Complainant that they required an extension and duly issued a decision to the request on 12 April 2024. The Adjudicator found that the Respondent had fully complied with their obligations under Section 21(1)(b) and Section 21 (2) of the Act and the claim was not well founded.

Takeaway for Employers:

It is important to reiterate that the rights under the Act and the Code provide a right of any employee to request remote working, they do not have a right to remote work.

An employer is obliged to consider the request having regard to the employer’s needs, the employee’s needs and the requirements under the Code but the employee will not have a legal claim against the employer purely because they are unhappy with the decision taken by the employer in respect of their request for remote working.

The remit of the WRC or Labour Court is not to decide on the merits of a decision made by an employer to decline a request for remote work. The WRC and Labour Court are limited to an assessment of whether an employer has complied with their obligations under the Act, more specifically section 21 and in accordance with the Code.

Employers should ensure that they have an up-to-date Remote Working Policy, outlining their obligations but also the obligations of any employee in making a request for remote working.

Links ADJ-00051600 - Workplace Relations Commission

Code of Practice

Authors – Ethna Dillon and Laura Killelea