by Anne Lyne , Gráinne Carville August-27-2024 in Employment Law
In a recent decision, Alina Karabko v TikTok Technology Ltd[1], the Workplace Relations Commission (the “WRC”), decided in TikTok’s favour, after a detailed examination of TikTok’s decision to deny a full-time remote working request. Despite the evolving landscape of flexible working arrangements, the decision confirmed that TikTok adhered the legislation and Code of Practice that governs remote working requests.
Factual Background of the Case
The Complainant commenced employment with TikTok on 24 January 2022. The Complainant’s employment contract stated that their normal place of work would be TikTok’s Dublin office. Due to the Covid-19 pandemic, remote working was in place in compliance with “…any relevant authority’s guidance and regulations”.
In June 2022, TikTok updated its Return to Office (“RTO”) policy, by introducing a hybrid working policy for its employees based in Dublin. Employees were to attend the office at least 2 days a week, with an encouragement to attend 3 days a week. The Complainant was permitted, on a discretionary “individual exception” basis, to work full time from their home for all of 2022.
In July 2023, TikTok announced that, from 9 October 2023, all Dublin-based employees were to follow a hybrid working policy whereby employees were required to attend their Dublin office at least 3 days per week.
After this announcement, the Complainant submitted a request to TikTok on 25 July 2023, seeking to continue to work remotely on a fulltime basis. This request was denied by TikTok, citing business needs and productivity considerations as their primary reasons for this refusal.
The Complainant continued working remotely on a full-time basis, which resulted in the initiation of a disciplinary process. The Complainant was issued with a verbal warning, which was unsuccessfully appealed by her.
The Complainant submitted a request for fully remote work, which ultimately, was refused. The Complainant was told that she could raise a grievance if she was still unhappy. She confirmed that she would not go down this route but lodged a complaint in the WRC on 6 May 2024.
Legal Framework
The Work Life Balance and Miscellaneous Provisions Act 2023 (the “2023 Act”) provides employees with the entitlement to request remote working but does not guarantee the request’s approval. The relevant sections in relation to this decision are as follows:
- Section 20: Details the procedure for requesting remote work, including submission requirements and deadlines.
- Section 21: Obliges employers to consider requests fairly and provide a decision within four weeks, with an option to extend the period by a further 8 weeks if necessary.
- Section 27: Limits the scope of WRC adjudication to ensuring procedural compliance, not the merits of the decision.
Legal Issues Considered by the Adjudicating Officer
The primary consideration of the Adjudicating Officer was whether TikTok had complied with the procedural aspects of the 2023 Act, not the merits of the decision. In providing its decision, it was determined that TikTok had adhered to all requirements under Section 21 of the 2023 Act:
- The request was considered carefully by HR and management, involving multiple meetings and adherence to both the Act and the Code of Practice for Employers and Employees on the Rights to Request Flexible Working and Remote Working (the “Code”). TikTok adequately considered the Complainant’s needs.
- TikTok acknowledged receipt and issued a decision within the allowed time frame (including an extension that was appropriately notified to the Complainant), including reasons for refusal.
- TikTok’s decision was based on business needs and productivity considerations, with a policy that was applied consistently across the organisation.
The Adjudicating Officer acknowledged that the Complainant followed the necessary steps for making her request, but ultimately, the Complainant’s case was not well founded as TikTok adhered to its obligations.
The Adjudicating Officer also considered the WRC’s jurisdiction in this matter, noting that the 2023 Act does not provide the WRC with a power to investigate the merits of an employer’s decision. The WRC may only review the procedure by which the decision was arrived at.
Key Take-Aways
- The WRC's ruling reinforces the fact that while employees have the right to request remote work under the 2023 Act, the ultimate decision rests with the employer’s discretion, provided it follows the stipulated process.
- The case serves as a critical reminder that the Act mandates a focus on procedural fairness rather than the merits of the decision itself. Employers are required to carefully consider and respond to remote work requests within the legislative framework but are not obligated to grant them.
- This decision not only clarifies the boundaries of employee’ entitlements, but also emphasises the importance of transparent and documented decision-making processes in the evolving work environment.
[1] ADJ-00051600
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About the Authors
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Anne Lyne
Anne is a partner in the Employment team at Hayes solicitors. She has considerable experience advising and representing employers and employees on all aspects of the employment relationship from pre-employment matters to termination.
Gráinne Carville
Gráinne is a newly qualified solicitor in the Employment Law team at Hayes solicitors LLP. Since qualification, Gráinne has advised public and private clients in transactional, advisory and litigation contexts.