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The Workplace Relations Commission (“WRC”) has issued its first decision on the right to request flexible and remote working under the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”).
In the decision, the Adjudicator gave helpful guidance on the Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working (the “Code”).
While the Act or the Code does not grant a legal right to work remotely or flexibly, it provides a framework for employees to request such arrangements and for employers to consider them within statutory timelines.
The Act makes various provisions for addressing remote working requests including having regard to the employee’s needs, the employer’s needs and the Code.
The WRC Code of Practice offers practical guidance for navigating these requests and for further details see our prior article New Code of Practice on the Right to Request Flexible and Remote Working.
Alina Karabko v TikTok Technology [2024]
In this case, Ms. Karabko was employed by TikTok Technology Limited (“TikTok”) from January 2022, where her normal place of work under her contract was TikTok’s office in Dublin 2. Due to the Covid-19 pandemic, she was permitted to work remotely on the condition she would return to the office at her employer’s request, which was provided for under her contract.
In June 2022, TikTok introduced a Return to Office policy requiring employees to work from the office at least two days a week. Ms. Karabko was granted an exception to work remotely throughout 2022. Her request to work remotely during 2023 was refused by TikTok. She continued to work remotely without authority which resulted in TikTok commencing a disciplinary process against her and they issued a verbal warning.
Following the publication of the Code of Practice, Ms. Karabko submitted a formal request to work remotely on a full-time basis in March 2024, citing personal reasons including accommodation challenges, reduction in her commute and quality of life improvements. TikTok refused her request within the timelines set out in the Act, setting out the reasons for the refusal, which included team collaboration and knowledge sharing in the office.
Ms. Karabko corresponded with TikTok outlining that her needs had not been met or considered, alleging TikTok failed to consider her request in a fair, objective or reasonable manner. TikTok, pursuant to the Code, offered Ms. Karabko the opportunity to raise a grievance, however Ms. Karabko elected not to issue a grievance. Instead, she brought a claim to the WRC.
Complainant’s Position
Ms. Karabko asserted that TikTok had breached their obligations under the Act and the Code. Her basis for this position was that the request was not considered in a fair, objective and reasonable manner. Ms. Karabko argued that TikTok only considered its own business needs and had disregarded her personal circumstances and did not objectively, fairly or reasonably consider the suitability of the role for remote working as well as her suitability to work remotely.
Ms. Karabko also challenged TikTok’s reasoning for the rejection.
Respondent’s Position
TikTok maintained that it had diligently complied with the Act and the Code, considering the request in good faith and providing valid reasons for refusal, having weighed up both the needs of the business and the needs of the Complainant. TikTok submitted that the fact Ms. Karabko’s request was not granted does not give rise to an actionable breach under the Act.
Importantly, the company also noted that the WRC cannot assess the merits of an employer’s decision to refuse a remote working request which is set out in section 27 (6) of the Act, only whether the correct process was followed.
WRC Decision
The WRC found in favour of TikTok on the basis it had evidenced serious consideration of the request, the holding of a number of meetings regarding the request, review of the request in line with business plans, taking of all relevant factors into account as well as compliance with the relevant timescales.
The Adjudication Officer (“AO”) noted that one of the purposes of the Act is to “provide for the entitlement of employees to request remote working arrangements”. The AO was clear that her remit was strictly limited to assessing whether an employer considered a request for remote working in line with the Act and in accordance with the Code of Practice. The AO considered the WRC’s jurisdiction in this matter, noting that the 2023 Act does not provide the WRC with a power to investigate the merits of an employer’s decision. The WRC may only review the procedure by which the decision was arrived at.
Key Practical Takeaways for Employers
This notable decision reinforces the fact that while employees have the right to request remote or flexible working under the Act, the final decision however, rests with the employer’s discretion, provided it follows the process as set out under the Act and the Code.
Employers must ensure they properly consider each request, document the process and comply with statutory timelines under the Act to avoid potential claims.
Employers should also ensure that they are able to evidence that they have considered any request and have complied with the prescribed timelines. For this reason, we would encourage all employers to document their decision-making process.
A clear policy on remote and flexible working, aligned with the Code, is essential for all employers together with relevant training regarding how to assess and respond to (including but not limited to evidencing consideration of) such requests in order to mitigate potential exposure to future legal claims.
Further Information
For further details on Flexible and Remote Working or for any Employment advice, please contact Partner Marc Fitzgibbon or Solicitor Nikita Kelly in our Employment Team.