Will remote working become the norm?

Clarity needed on employment rights as working from home takes root

Lockdown has created a divide between those who want to go to the office and those who want to work from home. Photograph: Joe Giddens/PA

Lockdown has created a divide between those who want to go to the office and those who want to work from home. Photograph: Joe Giddens/PA

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Over the last seven months there has been a seismic shift in how people think about where they work. Before Covid-19, most people had no choice but the lockdown has blown that apart creating a clear divide between those who want to go to the office, those who want to work from home and those who want a bit of both.

The uncertainty is deeply unsettling for all and concerns are beginning to surface about compulsion and whether someone can be forced to work from home or to go back to the office against their wishes.

The truth is that nobody knows what future working patterns will look like because Covid is still a moving target. That said, with thousands of employees now working from home, it has been acknowledged that their employment rights need to be respected and protected.

As recently as October 16th, Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar said the Government was considering giving people the legal right to request remote working and he acknowledged that the system was going to have to change to accommodate blended and hybrid working.

“We are working out the architecture we need to put in around that,” he said. “The kind of thing we are considering is giving people the legal right to request home working or remote working. It doesn’t mean they get it, but the right to request it.”

Uncertainty

And there’s the rub. Mights and maybes are the vocabulary of uncertainty whereas what people crave is direction, says Síobhra Rush, a partner with law firm Lewis Silkin and head of the firm’s Dublin office.

“Clarity is urgently required about key aspects of remote working, such as thresholds around exactly what constitutes working from home,” she says.

“Employers also need to consider if any of their policies, in particular confidentiality, data protection and discrimination, need to be updated to apply to home working. Bullying and harassment continues even in a remote workforce so human resource departments need to make sure there is a channel of communication for employees to discuss any issues or concerns they might have while working from home.

“In short, employers have a duty to provide a safe place of work and this includes ensuring that employees have suitable equipment to do their job.”

Rights

While employers’ obligations and employees’ rights under employment law apply in the same way to home workers as to employees based at a company’s premises, Rush says employers need to pay special attention to their obligations under health and safety and working hours (especially ensuring people are taking their breaks) when employees are based at home.

“These obligations can be particularly challenging to manage in a remote working situation and, in the case of health and safety, the current guidance from the Health and Safety Authority only covers temporary periods of working from home not permanent arrangements, so a lot more guidance is needed with working from home set to continue.”

Returning to the basics, Rush says that all employment contracts should include a provision that outlines the location of someone’s work. Employers would normally include a flexibility provision in this clause that says an employee may be asked to work at other locations with notice.

“Because people are being told to work from home under Level 5 at the moment, I think employers can insist that those who can, do. However, under normal circumstances if an employee is having a real difficulty with working from home an employer should look at alternatives in facilitating this,” Rush says. “Ultimately if an employee refuses to work from home, an employer could consider withholding pay or disciplining the individual although we haven’t seen this arise in practice.

“In fact, what seems to be more common is employers trying to facilitate those who want to go back into the office because their wellbeing is suffering under the present arrangements.”

Location

Asked if employers can insist that employees return to the office when the restrictions are lifted, Rush says, “I think this is going to be a big issue when we are finally out of the Covid situation.

“Many employers who would not have supported working from home in the past have had to facilitate it and we will likely see many requests by employees to work from home for at least some of the working week. Companies need to think about how they handle this.

“If the location of work clause in someone’s employment contract is a designated office, then yes, legally, an employer probably can insist they return there full time. As of now, there is no statutory right to request flexible working or working from home although it is being considered as part of the remote working consultation process currently under way.”

Rush adds that if an employer is proposing to sanction an employee who refuses to return to the office or is considering dismissing them, they will need to be able to show that their request to return is reasonable and their employee’s refusal to do so is unreasonable.

“Fair process will need to be followed of course but it would be much better to consult with the employee or employees involved, understand why they’re refusing to return to the office, assuage any concerns they may have and try to deal with the issues arising in a more collaborative way,” Rush says.

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