Where do employers stand legally on return-to-office mandates?

As the return-to-office debate trundles on, who decides where the work gets done?

In April of this year, a Dutch academic was awarded €300,000, the third-highest figure ever given out by the Workplace Relations Commission (WRC) to an individual, for unfair dismissal by University College Cork (UCC).

Hired during the global pandemic, Dr Wim Naude was dismissed without warning or due process less than two years later by UCC for failing to relocate to Ireland following the easing of Covid-19 restrictions.

During this time, Naude taught remotely from the Netherlands and attended UCC for one week each month, as he struggled to secure suitable accommodation for himself and his family. He explained relocation had always been the plan, however, Ireland’s ongoing housing crisis was a significant barrier.

Though this was an “extraordinary” case, it does raise the question, where do employers and employees stand legally when on opposing sides of the return-to-work debate?

Fair play

For Síobhra Rush, a partner at law firm Lewis Silkin in Dublin, it is crucial that organisations and institutions maintain careful disciplinary processes, including fair procedures and adherence to internal policies.

The rights of employees who have been working in a remote or hybrid capacity since the onset of the pandemic “largely depend on what’s in the contract of employment in regard to the place of work”, explained Rush.

During the pandemic, public health requirements resulted in the vast majority of people working from home, however, as Rush noted, these policies are no longer in place and some employees are still seeking to work in a remote capacity despite in-person work being a contractual requirement. 

For employees who have it written into their contract that they are entitled to remotely work, an employer will need their consent to implement any changes. “Depending on the circumstances, employees may seek to argue that a change in the contract has occurred as a result of a change in the arrangement over the passage of time,” said Rush.

“However, if an employer has communicated that remote or hybrid working arrangements have been temporary and subject to review, then it’s more difficult to argue that the employment contract has been permanently amended in this way.”  

Regardless of the policies already in place, Rush noted since March of 2024, employees have the legal right to request remote working, which employers must consider under specific rules within the Code of Practice laid out by the WRC. 

“However, it’s important to remember that it only confers a right to request a remote working arrangement – it’s not a right to work remotely. Employers must consider a remote work request in an objective, fair and reasonable manner,” she said.

Factors that an employer should take into consideration when coming to a decision include the suitability of the role, business criteria and employee needs. “There is also no right to bring a claim for a refusal of a request, only the process which led to the decision.”

Reasonable accommodations

In a legal sense, the phrase ‘reasonable accommodation’ has a specific meaning in Ireland, explained Rush. “Under Irish law (the Employment Equality Acts ‘EEA’),  employers are required to make certain ‘reasonable’ adjustments to the workplace to allow individuals with a disability to carry out their role.”

With this in mind, employers are obligated to take measures that enable people living with disabilities to access, participate and undergo employment -related training, provided it is not a ‘disproportionate burden’ for the employer, 

“The EEA does not, however, oblige employers to recruit, promote, retain or provide training to an individual who is not capable of undertaking the duties attached to that position,” Rush said.

As such, if an employee with a disability, who has documented evidence of their requirements, asks to work from home, an employer must give it consideration as a reasonable request, but also assess the burden on the business if remote work is permitted. 

“Outside of that legal concept and in the context of general overall flexibility when looking at requests to work remotely, it’s helpful if employers are not too rigid in their expectations,” said Rush. 

“Ultimately, it’s up to the employer to run their business as they see fit, and if this doesn’t suit the particular employee request, provided the employer has complied with the mandatory obligations set out above, they can insist on a particular working arrangement if they have to.” 

Consequences

A recent International Work Group survey found that the ability to work flexibly and remotely continues to be a priority for modern-day employees. Of the respondents who are parents, 74pc stated that they would look for a new job if their current role required them to commute to a central office five days a week. 

Are employers potentially creating a poor working environment by attempting to pressure employees to go back into the office? According to Rush, this depends on how the employer approaches the matter. For some, the issue is strictly contractual and a failure to meet expectations is a breach of the contract, leading to a disciplinary process.

“Some employers have considered reducing bonus payments for employees who haven’t complied with their policies on returning to the office. These approaches certainly have the potential to create employee relations issues,” she said.  

To limit the negative effects of disputes in the workplace, Rush advised employers to a return to the office sensitively, openly and transparently, working to maintain courteous employee relations. 

“Even if requesting a return to the office is not a contractual change, appropriate consultation which addresses the reasons why office attendance is necessary, and sets out expectations or obligations on both sides in a reasonable way, can help maintain a positive working environment.”

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