WRC Issues First Decision on Termination of a Remote Working Arrangement

In a noteworthy decision, the Workplace Relations Commission (“WRC“) upheld a complaint by an employee whose approved remote working arrangement was terminated by her employer without adherence to the procedural requirements prescribed by the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act“). In A Worker v A Retail Company (ADJ-00059235), the WRC found that the employer had failed to comply with the statutory procedure governing the termination of an approved remote working arrangement.

In our latest Employment Law update, Kevin O’Driscoll and Amy McNicholas of CKT’s Employment Law Team examine the decision and the key lessons for employers.

Background

In this case, the Complainant had a part-time remote working arrangement in place with her employer to facilitate the care of her child. It had been agreed between the Complainant and the Respondent’s HR Manager that the Complainant could work from home for two days per week and, in accordance with section 21(1)(b) of the Act, a written agreement was signed by the Complainant and the HR Manager to that effect.

The Managing Director, upon his return to the office following a period abroad, stated that the remote working arrangement could not continue and revoked the agreement with immediate effect. The Complainant was given only one day’s notice to return to full-time office attendance.

When the Complainant requested reasons for this revocation in writing, she was informed by the Respondent’s HR Manager that no reasons would be provided.

The Statutory Framework

Section 22 of the Act provides that where, after a written remote working agreement has been signed by the employer and employee, the employer is satisfied that the arrangement would have, or is having, a substantial adverse effect on the operation of the business, profession or occupation by reason of:

(a) seasonal variations in the volume of work;

(b) the unavailability of a person to carry out the duties of the employee in the employer’s place of business;

(c) the nature of the employee’s duties; or

(d) any other matter relevant to the substantial adverse effect on the operation of the business, profession or occupation,

The employer may, having regard to the needs of the business, the needs of the employee and the requirements of the Code of Practice, terminate the arrangement by notice in writing. However, the notice must specify the date on which the employee must return to the office and that day may not be earlier than four weeks after the employee’s receipt of the written notice.

Sections 22(3) and 22(4) of the Act impose additional procedural requirements on employers seeking to terminate a remote working arrangement. Section 22(3) requires that any notice terminating the arrangement contain a summary statement of the grounds for the termination. Section 22(4) further requires an employer, before issuing such a notice, to notify the employee in writing of the proposed termination, set out the grounds for that proposal and afford the employee seven days within which to make representations before any notice may issue under section 22(1).

WRC Findings

In upholding the complaint, the WRC found that the Respondent was in breach of section 22 of the Act. The WRC noted that the Respondent had failed to comply with the statutory procedure for terminating an approved remote working arrangement, including the prescribed consultation and notice requirements.

The WRC described the Respondent’s treatment of the Complainant as egregious, noting that she was given only one day’s notice requiring her to return to full-time office-based working, notwithstanding the Act’s requirement that a return-to-work date be specified no earlier than four weeks after receipt of the notice.

The WRC awarded the Complainant four weeks’ pay, representing the maximum award available under the Act.

Lessons for Employers

This decision serves as an important reminder to employers of the need to comply strictly with the procedural requirements of the Act when seeking to alter or terminate remote working arrangements.

It also highlights that employers must be mindful not only of the substantive grounds for terminating a remote working arrangement, but also of the statutory consultation and notice obligations that must be satisfied before any such termination can take effect.

Importantly, this decision demonstrates that even where an employer considers there may be legitimate business reasons to end a remote working arrangement, a failure to comply with the statutory process may itself result in liability.