The introduction of the statutory right to request remote and flexible working arrangements was initially welcomed by employees as an indication of changing post-pandemic workplace practices.

However, recent WRC case law has assessed how far redress options available to employees under the legislation extend. This, coupled with recent requests by some employers in both the public and private sectors for employees to increase their in-office attendance, has provoked discussion on the future of hybrid working in Ireland.

Background

The Work Life Balance and Miscellaneous Provisions Act 2023 (Act) provides all employees with the right to request a remote working arrangement (RWA), which may commence upon six months’ service with their employer if granted.

Certain categories of employees can also request flexible working arrangements for caring purposes under the Act.

Following the Act, the Code of Practice on the Right to Request Flexible and Remote Working (Code of Practice) was published in March 2024. Our article on the Code of Practice (available here) set out guidance for employers and employees in complying with the Act.

WRC Decisions on RWA Requests

Employees may refer a complaint to the WRC under section 27 of the Act where an employer has not considered their request for a RWA in accordance with statutory obligations.

If a complaint is successful, the WRC may direct an employer to comply with its obligations to consider a RWA request by reference to their needs and the employee’s needs and/or award compensation in favour of the employee to an amount which does not exceed four weeks’ remuneration.

There have been seven complaints referred to the WRC by employees under section 27 of the Act in respect of RWA requests. None of the seven complaints made adverse findings against the employer.

In both written decisions and recent media coverage, the WRC has noted the limitations on its ability to assess an employer’s decision under the Act and Code of Practice.

Crucially, the WRC cannot compel an employer to grant any RWA request. It is entirely a matter for each employer to decide whether to grant a RWA request. The WRC only has jurisdiction to consider whether the process followed by an employer when considering a RWA request meets statutory requirements.

The seven decisions issued by the WRC evidence the limited powers of redress granted to the WRC under the Act and the Code of Practice. Therefore, while employers should record their consideration of and process applied to RWA requests, it is not the case that the WRC can supplant its decision.

Other Potential Risks to Consider

While it is entirely up to each employer to decide whether to grant a RWA request without the risk of the WRC supplanting the outcome of the request, it is important to bear in mind the risk of discriminating against an employee in breach of the Employment Equality Acts 1998-2021 (EEA).

Employees who successfully claim discriminatory treatment pursuant to the EEA may be awarded up to two years’ remuneration in compensation.

The EEA protects employees from less favourable treatment on the grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion or membership of the Traveller community (Protected Characteristic).

Employers may be exposed to a claim of discrimination if an employee can point to a RWA granted to another employee who undertakes like work and who does not have a Protected Characteristic. However, employers may also be exposed to a claim of discrimination if an employee can evidence that the employer’s uniform approach to RWA requests indirectly discriminates against employees with a Protected Characteristic.

To protect against the risk of discrimination claims, employers should ensure that whatever approach they adopt, their policies are well considered, applied fairly and consistently and take care to avoid misplaced discretionary RWAs and discriminatory treatment, whether intentional or not.

Separately, reports from other jurisdictions suggest an increase in unionisation in the face of requests to return to the office full-time. This is relevant in Ireland given our constitutional right to form associations and unions, but it remains to be seen whether employees or unions may follow the same route.

What’s Next?

We have seen an increase in employers’ requests for employees to increase their in-office attendance or return full-time to the office. This trend is likely to continue for employees whose contractual place of work is the office, and employers cannot be compelled to grant a RWA request.

However, while there has been a double-digit fall in the advertising of fully remote roles in Ireland, 35% of Irish employees work remotely at least some of the time, with hybrid working models remaining popular. Recent reports indicate that 60% of Irish employees would turn down a new position if it did not meet their remote working needs

Employers are acutely aware of the challenge of recruiting and retaining talent while considering organisational demands to increase in-office attendance. To support this delicate balancing act, employers need to carefully consider their policies and procedures, clearly communicate them to employees, implement them fairly and keep them under review.

If you are an employer who has any queries on remote and/or flexible working arrangements, please reach out to your usual William Fry contact.