One year after the introduction of the Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working (the “Code”) in Ireland, the landscape for remote and flexible working remains complex. We take a look at what has worked, what has not, and where improvements are needed for the future.
What Has Worked?
A Clearer Framework for Requests
Before the Code, remote and flexible working policies in Ireland did not have a set framework and their implementation relied entirely at the discretion of employers. However, the Code provided a formalised process and set timeframes for both employers and employees on how to handle requests for remote and flexible working, which we outlined at the time here. Overall, the Code standardised decision-making and reduce uncertainty for employers on how to manage an employee’s request for a remote or flexible working arrangement.
Legitimising Remote and Flexible Working
Although employees only have the right to request remote or flexible work, with limited entitlement to actually work this way, the Code has helped establish these arrangements as legitimate options rather than just temporary pandemic measures. Many employers have embraced hybrid work arrangements and recognise their benefits for employee satisfaction and retention.
What Hasn't Worked?
Employer Discretion Over Employee Rights
While it is welcome news for employers, one of the biggest criticisms of the Code continues to be the high degree of discretion that employers have when refusing employees requests to work remotely or flexibly based on business needs. Additionally, employees cannot challenge a refusal at the Workplace Relations Commission (“WRC”) unless their request was ignored or if their employer did not handle their request in line with process outlined in the Code. For example, in Dienifer Taylor vs Microchip Technology Ireland Limited (ADJ-00053037), the complainant’s request was denied because it was not submitted in writing, underscoring the importance of following the procedural requirements outlined in the Code.
Over the past year, the cases before the WRC have reinforced a key reality that employers maintain full discretion over whether to approve or deny requests. This was particularly evidenced in the case of Alina Karabko vs TikTok Technology Ltd (ADJ-00051600), where although the employee’s contract specified Dublin as her workplace, she initially worked remotely due to company wide policies in response to Covid-19. When her employer introduced a return-to-office policy requiring two days in the office, she was granted a temporary exception to continue working remotely. Even when her employer increased the in-office requirement to three days per week, she continued working fully remotely and formally requested a permanent remote work arrangement under the Code by citing her role’s suitability for remote work and her relocation outside Dublin. Her employer acknowledged her request, extended its decision period, and ultimately refused her request by citing business needs, team collaboration, and knowledge sharing. When Ms Karabko challenged the refusal as not being fair or reasonable in the WRC, it was confirmed that the WRC can only assess whether an employer followed the correct process, not whether the refusal was justified. Ultimately, the decision reinforced that employees have the right to request but not to be granted remote work.
Additionally, in Javier Osorio vs Cognizant Technology Solutions Ireland Limited (ADJ-00052414), an employee’s request was refused due to a client’s requirement for on-site presence. In upholding the employer’s right to make that decision, the WRC reinforced the importance of procedural fairness over substantive employee rights.
No Right to Re-Request or Appeal the Decision
There is no obligation for the employer to reconsider an employee’s circumstances after the initial decision, which may be seen as being deficient, but should be welcome news for employers who won’t have to deal with repeated requests. As such, employees whose requests have been denied have no right to appeal the decision or re-request a remote or flexible working arrangement within a set period of time. That said, this contrasts with international best practices, where in the UK, employees may re-apply for a remote working arrangement after a set period or time or if circumstances change.
Potential for Discrimination
The flexibility given to employers in granting or denying requests has also raised concerns about potential discrimination. For example, certain groups—such as parents, caregivers, and people with disabilities—are more likely to request remote work. If their requests are disproportionately denied compared to other employees, the employer’s policy may be indirectly discriminatory. While the WRC has yet to rule on discrimination claims related to the Code, this remains an area of concern that will likely require further legal scrutiny.
Recommendations for Improvement
Going forward, we would expect the WRC to become a forum for employees to appeal the fairness of their employer’s refusal to an employees’ request for a remote or flexible working arrangement by the “back door”, instead of being limited to only overseeing whether the procedure in the Code has been adhered to. There is also a need for clarity on whether employees can re-request a remote or flexible working arrangement following an initial refusal.
Additionally, the Code does not account for industry-specific differences. While remote work is relatively easy to implement in corporate settings, it remains challenging in healthcare, manufacturing, and retail. As a result, employees in certain sectors have seen little to no benefit from the new framework. This imbalance suggests that sector-specific guidelines may also be introduced to address the challenges of different industries.
Conclusion
One year on, the Code has brought greater structure and transparency to remote and flexible working requests in Ireland. However, some deficiencies in the Code may bring continued challenge, particularly regarding enforcement and the ability to appeal their employer’s decision. Ultimately, while the Code is a step forward, its limitations mean that employees still lack a genuine right to remote work.
