The code underpinning an employee’s right to request remote working is a “toothless tiger”, according to an employment lawyer, despite the issue being a factor in a growing number of legal disputes.
All employees have had the right to request remote or flexible working under the Work Life Balance and Miscellaneous Provisions Act 2023.
It requires an employer to take such a request seriously, to consider their own needs, those of the employee and the Workplace Relations Commission (WRC) code of practice giving effect to the Act, but there is no obligation to grant it.
Forty-one cases have been taken to the WRC under the Act since the code came into effect in March of last year.
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The seven cases decided by the commission’s adjudication officers to date have all been rejected, according to Department of Enterprise data. Two others were resolved by mediation and eight were withdrawn before being dealt with.
Employment lawyer Barry Crushell said there is a general sense that the Act, and the code it prompted, is a “toothless tiger”.
The code was drawn up by a group that included employer and union representatives after a long consultation process. Employers have generally said it provides a welcome framework, effectively a checklist, for dealing with requests, but no new employee rights have been conferred.
“Remote working is probably a factor in 20 per cent of all of the new cases coming to us,” says Mr Crushell, “but we haven’t filed any complaints under the Work Life Balance Act because of the zero success rate to date.”
All the remote working cases taken under the Act that have made it to a hearing have involved workers representing themselves. Mr Crushell suggests this is evidence that those paid by workers to provide legal advice see no merit in pursuing such complaints.
“It bucks a general trend in the Workplace Relations Commission whereby approximately half of all complainants will have some form of representation, but I suspect that other legal practitioners, and even trade union representatives, are simply informing their clients that bringing such a claim will be a fruitless exercise,” he added.
The fact a complainant in one recent case taken under the Act did not attend the WRC hearing was seen as significant. Even if they had won, it would only have required their employer to go through the process of dealing with their request again.
“The reality is nobody is getting remote working without their employer’s co-operation,” said one trade union official with experience of the issue. “The Act is a bit of a red herring.”
Cases are instead being taken primarily on the basis of equality legislation, observers say, with employees making the argument for reasonable accommodations to be provided where there is an illness or disability involved.
Mr Crushell says remote working is a regular feature in unfair dismissals cases, with some workers being put on performance improvement plans after employers become concerned they are not as focused or available as they should be while based outside the office. He said parents juggling caring commitments sometimes find themselves in the firing line.
Many employers are willing to “grant a considerable degree of latitude to employees who they feel they can trust to get the work done when it is needed”, he said.
“Those same employees may have the very same issues if they were attending the workplace but from many of my employer clients’ perspective, their experience is that offering remote work to a small portion of employees ends up being counterproductive.”
