Ireland Update: Requests to Work Remotely – Lessons from Karabko v TikTok Technology Ltd

The Work Life Balance and Miscellaneous Provisions Act 2023 (‘the Act’) gave employees the right to make a request to work remotely. It also outlined the process for employers to follow to address such a request.  In this regard the Act makes various provisions for addressing such requests including having regard to the employee’s needs, the employer’s needs and the WRC Code of Practice for Employers and Employees Right to Request Remote Working (‘the Code’) when considering a request. The Act also contains the time limit within which a response should be issued as well as provision for reasons being given with any refusal of a request.

There is a key difference between having the right to make a request and have that request processed and adjudicated upon in a certain way versus having the right to work remotely.  

The decision in Karabko v TikTok Technology Ltd has emphasised that difference and provided helpful clarity for employers who may have been concerned that their ability to decide whether or not to facilitate remote working and at what level, in line with their business reasons, was being taken out of their hands.

What happened in the case?

• Ms Karabko commenced employment with TikTok in 2022, her contract provided that her place of work was her employer’s office in Dublin. Due to the pandemic she was initially permitted to work remotely from home on the condition she would return to her office at her employer’s request.
• Later the same year TikTok implemented a policy to return staff to their offices 2 days a week. Ms Karabko was granted individual exception to work remotely for the remainder of 2022.
• In October 2023 all employees were directed to return to the office 3 days a week however Ms Karabko continued to work remotely without having authority to do so. This resulted in disciplinary action against her.
• Following the introduction of ‘the Code’ Ms Karabko submitted a request to work exclusively remotely. Her reasons for the request included a lack of suitable accommodation in Dublin, reduction in her commute and improvement in her quality of life.
• TikTok complied with the provisions of the Act and the Code in terms of considering and responding to the request including the issuing a response within the relevant timescales. TikTok refused the request confirming their reasons which included team collaboration and knowledge sharing in the office. They also offered Ms Karabko the option of lodging a grievance on the issue.
• Ms Karabko elected not to issue a grievance instead she brought a claim to the WRC asserting that TikTok had breached their obligations under the Act. Her basis for this was that the request was not considered in a fair, objective and reasonable manner (as provided by ‘the Code’).
• The WRC found in favour of TikTok on the basis the company had evidenced serious consideration of the request, the holding of a number of meetings about the request, review of the request in line with business plans, taking of all relevant factors into account as well as compliance with the relevant timescales.
• The WRC clarified their remit in adjudicating such complaints, as per Section 27(6) of the Act which states:

“In making a decision referred to in subsection (1), (2) or (3), an adjudication officer or the Labour Court, as the case may be, shall not assess the merits of-
(a) the decision of the employer reached following his or her consideration under section 21(1)(a) of the employee’s request,
(b) the refusal by the employer under section 21(1)(b)(ii) or the reasons for such refusal given under that provision…”

Conclusion 

This case helps clarify that it is not for the WRC to assess the merits of any refusal. So long as an employer has complied with their obligations in the Act as well as the Code they are well positioned to defend any claim brought. It is imperative employers implement and follow a suitable policy for these requests that ensures their compliance.

Other possible pitfalls 

Whilst it was not a feature in this case, employers should be mindful of consistency in their approach to avoid arguments of discrimination. They should also be particularly careful where requests may effectively fall under other equality legislation, such as requests based on an employee’s medical issues or needs. Such a request may constitute a request for reasonable accommodation of a disability and would place a much higher level of obligation on the employer in terms of facilitating that request. 

We strongly recommend employers take prompt and quality legal advice upon receipt of a remote working request to ensure they are compliant with all relevant legal obligations and to minimise the risk of claims including claims of discrimination.

By ByrneWallace, Ireland, a Transatlantic Law International affiliated firm. 

For further information or for any assistance please contact ireland@transatlanticlaw.com.

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