Paul O'Donoghue

Ireland’s law allowing workers to request remote work was supposed to be balanced between the rights of employees and of companies.

On current evidence, it looks as balanced as a see-saw with a feather at one end and a cartoonishly oversized Acme anvil on the other.

Introduced in March, the law means that when a worker asks to work remotely, a company must show that it has “seriously considered” the request.

If an employee feels their request has not been considered properly, they can take a case to the Workplace Relations Commission (WRC), the state’s labour dispute body.

Many critics at the time said this all sounded a bit vague and woolly. 

But former Taoiseach Leo Varadkar, who spearheaded the law, insisted that it would mean that companies would “have to give a good reason” to refuse a remote working request.

However, the latest evidence shows this is not the case.

It shows that the new legislation amounts to little more than the right for employees to be politely told the company policy in writing.

Or to put it another way – if an employee requests to work remotely, and the company says no, there is essentially nothing the worker can do about it under the new law.

Twenty complaints

About 20 complaints have been made to the WRC relating to remote or flexible working since March.

The first decision, which was published by the WRC earlier this month, clearly shows just how limited the new legislation is.

The case, taken by a worker at social media giant TikTok, argued for the right to fully remote work.

Upon being hired in January 2022, the employee’s contract stated that her “normal place of work” would be at TikTok’s Dublin office. However, the employee worked fully remotely due to the Covid pandemic.

Following the lifting of Covid restrictions, in July 2023, TikTok announced that employees would have to return to the office for three days a week.

The worker did not go into the office, continuing to work remotely.

She argued that to work on-site, she would need to wake up at 3am and drive 2.5 hours to get to the office by 7am as she could not find accommodation in Dublin.

She also pointed out that she works for the North American and Canadian markets and those teams she interacts with are not physically based in Dublin.

In refusing her request, TikTok said: “The company believes that in-person presence is crucial for team engagement and effective training.”

It also said in-office work was better for “team collaboration and knowledge sharing”.

All things considered, a pretty good test case.

An employee makes what appears to be a compelling argument to be allowed to work remotely. 

The employer says no, the employee then turns to Ireland’s new “right to request remote work”.

The result?

The company won. The employee’s case was dismissed.

But how did TikTok argue its case?

Did it outline the compelling reasons for in-office work?

Or look to refute the employee’s claim that she would be driving 2.5 hours to sit in an office to work remotely with people based in North America?

Not at all.

All TikTok had to do was show that it followed the correct procedure in saying no.

Basically, just two boxes have to be ticked.

First, the company has to demonstrate that the request was properly “considered”.

Tiktok did this by reporting how a manager and HR employee met “on a number of occasions to consider the request in detail”. 

After studying the remote working law and referring to the company’s “business plans”, it decided to refuse the request.

Then, requirement number two: issue a reply to the employee within four weeks. 

That was done as well.

With just these two boxes ticked, there is basically no way for the company’s decision to be questioned. Case closed.

The WRC specifically said that it did not investigate whether the employee’s remote working argument had any merit or not.

“The Act is very limited in terms of what rights are granted to an employee. The focus of the legislation is on the process,” the WRC inspector said.

“I am not empowered to investigate the merits of a decision made by an employer where a request for remote working has been refused.”

This is a feature, not a bug, of the new “right to request” law.

The code of practice issued by the WRC after the legislation was passed states: “Under the Act, neither an Adjudication Officer of the WRC, nor the Labour Court has the legal power to assess the merits of any decision made by an employer in relation to flexible working. 

“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.”

Essentially, once a company can show it has correctly followed the “right to request” process, it is basically free to deny any flexible working arrangement it wants.

This has also been the conclusion of many legal firms.

For example, Matheson, one of Ireland’s biggest corporate law agencies, said the WRC’s ruling on the TikTok case was a “welcome decision for employers”.

“The WRC will ultimately only assess the rigours of the decision-making process, not the merits of the decision itself,” it said.

A&L Goodbody also said the decision would “undoubtedly be welcomed by employers”, adding: “It reiterates that the right in the Act and under the [WRC] code is to request remote working, not to remote work.

“The fact that the WRC is not empowered to look behind the merits of an employer’s decision might come as a surprise and disappointment to many employees, but this case confirms what the Act provides in that regard,” it said.

The end result is that a few companies might get caught out by process here and there (although the two steps are so simple they seem hard to mess up).

More rulings will be needed to 100% confirm the approach taken in the first case. But based on the law, it seems unlikely there will be any major differences in the approach the WRC can take.

Fundamentally, the new law seems like it will do basically nothing for employees arguing for the right to work remotely.

On the contrary, it essentially validates companies rejecting remote working requests, without even assessing the merits of their refusal.

It’s hard to escape the feeling that the whole process of introducing a “right to request remote work” in Ireland has been a massive waste of time and energy.

At least, from an employee’s perspective. 

Employers may now be happy that they now have a legal process to point to as they look to get remote workers back in the office..