On March 10th last year, Javier Osorio sent an email to the human resources department of his employer, Cognizant Technology Solutions Ireland, the Irish arm of a US information technology services and consulting group.
Javier was seeking “ ... a hybrid work model, where I can work remotely from home most days and come to the office a maximum of two days a week”. The reason for the request, according to Javier, was that he wanted to balance the responsibilities of his job with caring for his 10-year-old daughter.
Three days earlier, on March 7th, 2024, the Workplace Relations Commission (WRC) had published its code of practice setting out the framework for dealing with complaints related to the Work Life Balance and Miscellaneous Provisions Act 2023. The code set out the procedures employers must follow when dealing with requests for remote work and how the WRC would deal with complaints. It was the last piece of the jigsaw puzzle that was meant to fulfil the promise by the Government parties to enshrine the right to remote and hybrid working in law.
Javier’s request was refused along with those of 72 other Irish employees out of Cognizant’s Irish workforce of 380 people.
Javier made a complaint under the new code to the WRC in June and its ruling, published before Christmas, will be seen by many as the final nail in the coffin of the promised right to remote working. The writing had been on the wall since the publication of the legislation in 2023 which did little more than require employers to treat requests in an “objective, fair and reasonable manner”.
We now have some idea of what objective, fair and reasonable means following the publication of the WRC decision on Javier’s compliant.
It looks like this:
On foot of his March email Javier met Cognizant’s human resources department on April 26th. He was asked a series of questions to determine his remote working requirements and completed a health and safety questionnaire related to home-working.
On May 9th he got a letter from the company’s HR business partner, Sunitha Gogineni, telling him that his request for remote working had been rejected.
Javier appealed the decision – as allowed under the legislation – and attended an appeal with the company on June 6th. Five days later he was told the application was not accepted but that “some projects were suitable for remote working and that he could apply for other roles that matched his skills”.
On June 18th he submitted a complaint to the WRC. He had another meeting with HR on July 17th and was again told that there were projects that are suitable for remote working, and he was invited to apply for open roles on these projects. In his evidence at the WRC hearing, Javier said that he was reluctant to move off the project on which he was working in case his employment was terminated when another project finished.
In his complaint Javier claimed he was given a generic response, with little consideration for his individual situation which included how his wife’s job in hospitality along with his schedule and the distance he has to travel to work caused difficulties with childcare. He also said that the requirement for him to work in the evenings – from 4pm to 1am collaborating with colleagues in Latin America – had an impact on the time he spent with his family.
He said his appeal was postponed several times and that this demonstrated a lack of seriousness and commitment to his case on the part of the company.
Cognizant’s response was emphatic. It said that his contract specifically said that he is based on the site of the client on whose project he is working on and that it has considered the complainant’s request for remote working and given him the right to appeal.
According to the WRC ruling, Cognizant said it was constrained by what is described as the “client delivery model”, which means that the client has stipulated that employees working on its project must attend work in person in the office they have provided and fitted out.
It also pointed out that it had offered Javier an alternative solution even after the process had ended.
The WRC ruled that Javier’s application was properly considered and the company “recognised his [Javier’s] need to balance his work and childcare responsibilities”. The adjudication officer said she accepted the “the evidence of the respondent’s witnesses that they consulted with their client to explore the possibility of remote working but that the client was unwilling to permit the employees assigned to their project to work from home”.
The ruling will be no doubt be welcomed by the various bodies such as the American Chamber of Commerce and Ibec that lobbied hard to water down the legislation on behalf of employers both international and domestic.
The Government will presumably also be relieved. Its election promise of four years ago was starting to look a little rash as threats to foreign direct investment grow, not least with the election of Donald Trump as the next US president.
Javier, his wife and daughter along with everybody else trying to reconcile childcare, commuting and accommodation costs with the desire of a decent quality of life will have less to be pleased about.
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