In this Q&A interview, Laura McKee, Knowledge Partner at Legal Island, discusses some of the remote work questions facing HR professionals today, helping them understand employment law and how it applies. apply to their workplace.

As remote work evolves, what advice do you have for employers on 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 Code of practice for employers and employees with the right to request flexible work and the right to request remote work (the Code).

In short, 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 follow certain procedural steps when submitting a remote work request. After receiving an application, an employer must consider the application and respond within four weeks – this may be to approve the application, refuse the application or extend the four-week period (for a period not exceeding eight weeks) in which the employer encounters difficulties. request assessment.

Refusal of a request to work remotely can lead to potential claims, but it is important to note that neither the Act nor the Code gives employees the right to work remotely, only the right to request it. While an employee can lodge a complaint with the Workplace Relations Commission (WRC) if an application is refused, the WRC is limited to checking whether the employer has followed the proper procedure and time limits set out in the Code, rather than assessing the validity refusal. itself.

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

The Code encourages local dispute resolution, but if unsuccessful, employees can make a specific claim to the WRC within six months, which can be extended to 12 months in certain cases. Most hearings are public and the parties are named in the decisions, unless there are exceptional circumstances.

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

Are employers advised to have written policies regarding employee remote work requests?

Yes, employers are generally advised to have written policies that address employee telecommuting requests. Such policies help set clear expectations for productivity, communication, availability, security and performance, minimizing potential problems and ensuring that 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 handling these requests. Employers must ensure that they comply with the standards in this Code, which may involve reviewing any previous policies to ensure compliance.

While it is essential to have policies in place, it is essential that they align with current practices. Policies that are not followed consistently can weaken both their legal validity and employee confidence. For example, inconsistent management approaches – where some teams or managers offer more flexibility than others, or where senior leaders advocate for office presence while regularly working from home – can lead to the perception of favoritism or bias. Therefore, policies should be applied consistently throughout the organization, promoting fairness and transparency.

What lessons can be learned from existing court cases around the topic of remote work?

Key lessons from the court decisions include:

• Latitude of the employer: The first Irish teleworking case before the WRC (Karabko v. TikTok Technology Ltd) was heard in July of this year. The WRC found in TikTok’s favor after reviewing TikTok’s decision to deny a request for full-time remote work. It highlights an important distinction: Employees have a legal right to request telecommuting, not an automatic right to telecommute.
• Procedural compliance and documentation: Employers must follow a structured process when dealing with remote work requests. The WRC has no legal power to assess the validity of an employer’s decision. Rather, they are limited to considering the process and procedure followed by the employer to make the decision. Employers must keep detailed records of discussions, decisions and reasons 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 HealthThe WRC found that employers can make reasonable demands on employees about returning to the office. In the circumstances of this case, 1 day per month in the office was considered to be reasonable.
• Balancing needs: Recent case law highlights the importance for employers to balance their business needs with the personal needs and circumstances of employees. Employers should explore and document alternative arrangements if an employee disputes the employer’s initial request to mandate certain days off duty.

Established in 1998, Legal Island is an employment law training specialist providing jurisdiction-specific guidance to HR professionals through conferences and workshops, its Employment Law Center and eLearning employee compliance training. Legal Island notes that the information in this article does not constitute legal advice, noting that it is not in a position to respond to requests for specific legal or HR questions, and recommends that professional advice be obtained before relying on the information provided in this article.