Remote work legalities: ‘We’ve turned a blind eye for two years but that will stop’

Efforts at legal clarity around changed world of work appear to favour employers

“Employers must not have the option of simply turning down requests on spurious or vague grounds,” says Kevin Callinan, Fórsa general secretary

“Employers must not have the option of simply turning down requests on spurious or vague grounds,” says Kevin Callinan, Fórsa general secretary

 

Draft laws on remote working mark an attempt by Tánaiste Leo Varadkar to formalise radical work practice changes that were suddenly introduced when Covid-19 struck two years ago.

Back then, the force of the pandemic was such that procedural and legal niceties were swept aside in the rush to protect public health and keep the economy turning. Many tricky questions were avoided at that time but they can be avoided no longer now that most restrictions have been lifted.

“We’ve worked through for two years basically turning a blind eye to the whole thing but that will stop,” said Richard Grogan, an employment law solicitor in Dublin.

“We’ve been working through an emergency which is slightly different. The emergency is now finishing.”

The new regime is supposed to open more choice for workers if they wish to work from home, giving them a right to seek such arrangements after six months. But in-built flexibilities for employers open scope for them to refuse permission to work remotely on 13 grounds.

Conflict appears inevitable. With key details still to be worked out, legal experts, employers and unions foresee many potential pitfalls and practical challenges when it comes to implementing the new arrangements in real time.

Many say the pandemic changed the world of work forever. A recent Central Statistics Office survey suggests that 80 per cent of workers worked remotely at some point since coronavirus struck, compared with 23 per cent before it. Two years later, with all signs suggesting the most acute phase of the health crisis has passed, these practices have bedded down to an extent that few might have expected at the outset.

Traffic and transport

Of those in employment who can work remotely, CSO data suggests 88 per cent want to continue after restrictions were removed: 28 per cent of them all the time; and 60 per cent some of the time. The proportion expressing that preference was highest at 93 per cent among respondents in counties Kildare, Louth, Meath and Wicklow in the Dublin commuter belt, where workers often encounter long traffic delays and overcrowded public transport.

If all of that points to high demand to avail of new laws, considerable hurdles remain to be overcome. To name but a few, these centre on domestic health and safety legislation, insurance issues, European data-protection law and on the Workplace Relations Commission’s new role in determining appeals to decisions against remote working.

“A lot of the issues that are going to go to the WRC where there isn’t agreement will relate to things like health and safety of a premises or [General Data Protection Regulation] compliance or whether somebody can actually do their work remotely. The [WRC] adjudication officers aren’t trained in any of those areas,” said Grogan.

“They are not there to look at a work station and say: ‘Does it comply with health and safety? Is it possible to put a work station into this bedroom safely?’ So that’s a huge issue.”

Asked whether the WRC had enough resources, the Department of Enterprise, Trade and Employment said it would “work closely” with the institution to ensure it did. “Adjudication officers will receive appropriate information on the content of the legislation and the WRC was consulted on the heads of the Bill,” the department said.

Grogan suggested the Safety, Health and Welfare at Work Act might have to be “dumbed down” for remote work. “The only change you could bring in is if you’re working from home and you have an accident it’s your problem.”

Employer ‘nervousness’

He added that changes might also be required to the Civil Liability Act, which governs personal injuries. “There’s going to be a bit of nervousness overall about this,” he said, referring to employers.

But while the Government always has the option of amending Irish law, it can’t do anything on its own with European GDPR rules that impose stringent restrictions on how business uses sensitive personal data.

Neil McDonnell, chief executive of the Irish Small and Medium Enterprises business representative group, pointed to potential difficulties with remote-working where staff deal with such data. These include companies in the area of external payroll support – dealing with gross and net pay and issues like payments under maintenance agreements – and human resources support.

“There’s a few business that have been able to function remotely but reluctantly and with a lot of concern around what they’re doing,” McDonnell said.

“They basically have the innards of the company sitting on laptops. You could have someone doing HR support on their laptop in the kitchen – a bullying complaint, a harassment complaint or something of a sexual nature – and you have people who are third parties with no involvement in the companies walking past looking at that stuff.”

Employers were also concerned about the potential for claims for personal injury while working at home, McDonnell added. “We’re waiting to see something coming to court, or the Personal Injuries Assessment Board or the Health and Safety Authority.”

The plan has also come in for criticism from Fórsa, the largest public sector union, which said the “business grounds” for refusing remote working were too broad.

The union said the inclusion of grounds such as “potential negative impact on quality”, “potential negative impact on performance” and “planned structural change” would create loopholes that could allow employers turn down requests for no objective or proven reason.

“Employers must not have the option of simply turning down requests on spurious or vague grounds. Instead, they must be required to demonstrate, in a concrete way, that remote or blended arrangements are unworkable before they can turn down a request,” said Kevin Callinan, Fórsa general secretary.

Further questions are certain to arise as the law works its way through the Dáil and Seanad. The pandemic was all about ad hoc moves. Permanent arrangements are another matter entirely.

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