Remote work: Employee has right to request, boss is free to refuse

To minimise complaints, employers should respond to requests within four weeks, and clearly explain any refusal in line with legal guidelines 

Laura McKee, knowledge partner with Legal Island.

While responding to a rise in employee demands around remote work options, employers are also naturally faced with the challenge of accommodating these requests while maintaining productivity and company culture. 

The employment law training specialist Legal Island recently hosted its ‘Annual Review of Employment Law’ in Dublin to look at these and other current workplace topics. More than 400 senior HR professionals attended, seeking to elevate their knowledge, skills, and connections in the ever-changing world of employment law and HR best practices.

In this Q&A interview, Laura McKee, knowledge partner with Legal Island, discusses some of the remote work questions presently facing HR professionals, helping them understand employment law and how it applies to their workplace. 

As remote working evolves, what advice do you have for employers around discretion, procedural and compliance issues? What are the risks and fines?

This area of employment law is governed by the Work Life Balance and Miscellaneous Provisions Act 2023 (the Act) and the Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working (the Code).

In summary, employees must complete six months of continuous employment before the requested working arrangement can take effect (note that employees can make the request on Day 1 of employment). An employee must comply with certain procedural steps when submitting a request to work remotely. After receiving a request an employer must consider the request and respond within four weeks — this may be to approve the request, refuse the request, or extend the four-week period (for a period not exceeding eight weeks) where the employer is having difficulty assessing the request.

Refusing a request for remote working can lead to potential claims, but it’s important to note that neither the Act nor the Code grants employees a right to work remotely — only the right to request it. While an employee may make a complaint to the Workplace Relations Commission (WRC) if a request is refused, the WRC is restricted to reviewing whether the employer followed the proper procedure and timelines set out in the Code, rather than assessing the validity of the refusal itself.

To reduce the risk of complaints, employers should carefully consider each request, respond within the four-week period, and clearly explain any refusal in line with the Code’s guidelines.

The Code encourages resolving disputes locally, but if unsuccessful, employees may bring a specific claim to the WRC within six months, extendable to 12 months in certain cases. Most hearings are public, and parties are named in decisions unless there are exceptional circumstances.

Failure to meet procedural obligations on remote work requests may lead to WRC directives for compliance and potential compensation of up to four weeks’ pay for remote work requests. 

Are employers advised to have written policies around employees' remote work requests?

Yes, employers are generally advised to have written policies addressing employees' remote work requests. Such policies help set clear expectations around productivity, communication, availability, security, and performance, minimising potential issues and ensuring all parties understand what remote work entails.

Since Covid-19, many employers have already implemented remote work policies. In March this year, the WRC introduced the Code, which provides practical guidance on managing these requests. Employers should ensure that they adhere to the standards within this Code, which may involve revising any previous policies to ensure compliance.

While having policies in place is essential, it is crucial that they align with actual practices. Policies that aren't consistently followed can weaken both their legal validity and employees' trust. For instance, inconsistent management approaches — where some teams or managers offer more flexibility than others, or where senior leaders advocate for in-office presence while regularly working from home themselves — can lead to perceived favouritism or bias. Therefore, policies should be applied consistently across the organisation, promoting fairness and transparency.

What lessons can be taken from existing court cases around the subject of remote work? 

The key lessons from court decisions include:

•   Employer’s Discretion: The first Irish case on remote working before the WRC (Karabko v TikTok Technology Ltd) was heard in July this year. The WRC held in TikTok’s favour after they reviewed TikTok’s decision to deny a full time remote working request. It highlights an important distinction: employees have a legal entitlement to request remote working, not an automatic right to work remotely.
•   Procedural Compliance & Documentation: Employers must follow a structured process when dealing with remote working requests. The WRC does not have the legal power to assess the merits of an employer’s decision. Rather, they are limited to considering the process and procedure followed by the employer in reaching their decision. Employers must keep detailed records of discussions, decisions, and the rationale behind accepting or rejecting remote work requests.
•   Reasonable Requests: In the second case before the WRC on this issue, Rafael Andrade Jorge v Centric Mental Health, the WRC found that employers can make reasonable requests to employees regarding return to the office. In the circumstances of this case, 1 day a month in the office was held to be reasonable.
•   Balancing Needs: Recent case law highlights the importance for employers to balance their business needs with the needs and personal circumstances of the employees. Employers should explore and document alternative arrangements if an employee challenges the employer’s original request to mandate certain days in office.

Founded in 1998, Legal Island is an employment law training specialist, providing jurisdiction-specific guidance for HR professionals through conferences and workshops, its Employment Law Hub, and eLearning compliance training for employees.Legal Island notes that the information in this article does not constitute legal advice, noting that is not able to respond to requests for specific legal or HR queries and it recommends that professional advice is obtained before relying on the information supplied within this article.