Remote Work Complaints Before the Workplace Relations Commission

Background

The case of Aline Karabko v TikTok Technology Ltd (ADJ-00051600) examines the obligations employers have, under Irish law, when a request for remote work is made by an employee.

As the law in Ireland currently stands, there is no right to remote work per se. This may be overcome when an individual has been guaranteed remote work in their contract of employment or remote work has been determined to constitute a reasonable accommodation in accordance with relevant employment legislation, where applicable. However, none of these exceptions applied in the present case. 

Aline Karabko (the Complainant) brought a complaint under section 27 of the Work Life Balance and Miscellaneous Provisions Act 2023 against TikTok Technology Ltd (the Respondent) to the Workplace Relations Commission (WRC), arguing that her employer didn’t properly consider her remote working request. 

Legislation and Case Law on Remote Work

Section 20(1) of the Act provides that “An employee may, in accordance with this Part, request approval from his or her employer for a remote working arrangement”. 

The Respondent accepted that the Act confers a right to request remote work but, significantly, it does not confer any right to be granted a remote work arrangement.

Section 20(3) of the Act provides:

“A request for a remote working arrangement referred to in subsection (1) 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, where applicable, expiration of the remote working arrangement,

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

(I)   the reasons why he or she is requesting approval of the remote working arrangement (in this Part referred to as “the employee’s needs”),

(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)  be submitted to his or her employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the remote working arrangement.

The Respondent accepts that the Complainant submitted a request to work remotely in accordance with section 20(3) of the Act.

Section 21 of the Act provides that:

“(1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20 (3) shall—

(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.”

The Respondent acknowledged receipt and issued an outcome in respect of the request in accordance with the timelines provided for under the Act. Full remote work was denied and reasons were given.

According to the Adjudication Officer, in reaching their decision, the Respondent fully considered the request:

“The Respondent rejected the Complainant’s assertion that her needs were disregarded, or that the Respondent did not consider her request objectively, fairly and in a reasonable manner. The Respondent engaged in an objective decision-making process and issued a reasoned outcome. The fact the Respondent did not agree with the Complainant’s proposition (i.e. that her needs (or preferences) outweigh the Respondent’s) does not mean the Respondent did not process the request in an objective, fair and reasonable manner.”

Furthermore, all that section 21 of the Act mandates is that an employer considers a request to work remotely “having regard to…the employee’s needs…” 

It does not mandate an employer to decide that request in favour of an employee if, for example, their needs are clearly outlined and are compelling. 

Therefore, once an employer has had regard to the employee’s needs, it has discharged its statutory obligations even if the employee concerned believes insufficient weight has been attributed to their needs (See: Cork County Council v Minister for Local Government, Planning and Others [2021] IEHC 683).

In deciding on its optimum hybrid working model, the Respondent had regard to a variety of factors including a desire to provide flexibility to employees while at the same time not compromising ways of working that it believes are essential to the development of its employees, their contribution to the Respondent’s business and ultimately the Respondent’s success. The Respondent had reasonably determined that in-person collaboration was essential, and this was best achieved with an organisation wide mandate to work from the office 3 days a week. 

This policy was applied consistently across the Core Operations Team, with no employees in this department in Ireland being entitled to permanently work remotely more than two days per week, other than where permitted as a reasonable accommodation to an employee with a disability.

In terms of this claim, section 27 of the Act confirms that the merits of the employer’s decision “shall not” be assessed in a claim before the WRC or Labour Court. In this respect, section 27 provides:

“(6) In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of—

(a)  the decision of the employer reached following his or her consideration under section 21 (1)(a) of the employee’s request,

(b)  the refusal by the employer under section 21 (1)(b)(ii) or the reasons for such refusal given under that provision,

(c)   the decision of the employer to terminate, under section 22, a remote working arrangement or the grounds given by the employer under that section for such termination,

(d)  the refusal by the employer under section 24 (3)(b)(ii) or the reasons for such refusal given under that provision, or

(e)  the refusal by the employer under section 24 (4) or the alternative date proposed under that provision.

The Code of Practice also confirms the express limits on the role of the WRC and Labour Court in respect to claims brought under the Act as follows:

“Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to [remote work]. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision.”

Therefore, without prejudice to the Respondent’s position that its decision to refuse the request was made objectively, fairly and reasonably, it is clear that section 27 of the Act precludes the adjudication officer from considering the merits of the Respondent’s decision to decline the request or the reasons underpinning same. Therefore, provided the Respondent can show that it considered and responded to the Complainant’s request as required by section 21 of the Act, there is no basis for the Complainant’s claim. 

Decision

Ultimately, the Adjudication Officer determined that the employer had fulfilled their statutory obligations to consider the remote working request, as well as provide a written explanation as to why it was being denied. 

Although, there is a legal obligation on employers to consider a request for remote work this must be distinguished from a legal obligation to provide remote work on foot of a request.

Takeaway

The takeaway for employees considering making a remote working request, is to identify the need for remote work, the impact it may have on the business, and the capacity the employee has to carry out the functions required of them while at home. However, be cognisant that while you have the legal right to request remote work, there is no legal requirement for an employer to grant it.

For employers, when they receive a request for remote work is to ensure that any decision aligns with the company policy on remote work, the contractual entitlements of the employee concerned, as well as the needs of the business.

As far as is reasonably practicable, an employer should provide a reasonable justification for any refusal for remote work for part thereof.

Further Information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.