Earlier this year, employers all over the country made an almost overnight transition to remote working models in preparation for the first lockdown. But even before the pandemic, remote working options were becoming more prevalent as both employers and employees sought to maximise work-life balance. There is also political will at both EU and domestic level to develop a more family-friendly workplace culture. A new EU Directive on work-life balance sets several new standards for parental, paternity and carer’s leave, including the right to request flexible working arrangements. The Directive will come into effect in EU countries in August 2022.
Now, as we near the end of 2020, we are seeing that the COVID-19 crisis has accelerated the need for employers to adopt more formal policies and procedures around managing long-term homeworking arrangements. While all this might suggest that we are heading in the direction of giving employees a statutory right to work from home, there is currently no draft legislation in place that would provide this right.
In our view, there is also no need for the state to get involved in a matter that has to date been discussed and agreed between employers and their staff. Various recent surveys and studies have confirmed that there has already been clear growth in the prevalence of remote working without any government intervention. This growth has been fuelled by demand from employees and an increased willingness from employers to facilitate working from home.
Introducing a statutory right to request remote working is also likely to lead to employees bringing claims to the Workplace Relations Commission (WRC) if they feel this right has been breached. Given the significant growth in remote working even before COVID-19, there appears to be no need to introduce a statutory right that could unduly limit an employer’s right to run their business effectively and add to the WRC’s growing backlog of claims.
Remote consultation findings
The Department of Enterprise, Trade and Employment has also recently released the findings of its Consultation on Remote Working Guidance 2020. While there are many benefits employers can experience by introducing work from home options, the key themes running through the consultation results focus on the associated risks and costs. The findings suggest that employers are keenly aware that the employee rights that exist under employment and health & safety laws apply equally to staff who are working from home.
Health & safety
The consultation process revealed that there are concerns that existing health & safety legislation does not adequately address remote work practices. Various questions arose like what constitutes a safe and ergonomic workspace and how this can be achieved at home? Many employers wanted to know how risk assessments are carried out remotely.
Working from home also introduces stresses associated with social isolation and setting boundaries between work life and personal life. To reduce this risk of social isolation, employers should promote regular contact and interaction between colleagues. If possible, training for managers on how to identify and handle the signs of staff anxiety caused by isolation is also recommended.
Working time risks
Earlier this year, many employees reported working longer hours while working from home. Under the Organisation of Working Time Act 1997, employers must not permit employees to work over and above the daily and weekly hours of work set down in the legislation. The legislation is arguably no longer fit for purpose given that a lot of modern work is carried out flexibly, but as the law stands, the employer must ensure that staff take their statutory breaks and rest periods. The submissions reflected the importance of creating a culture of trust around remote working which encourages work-life balance.
Data protection risks
Data protection risks were also prominent in the submissions. The risk of disclosing confidential information is particularly high while employees are working from home. Some organisations have deemed it necessary to advise staff to switch off Alexa! Employers expressed a need for clarity around the use of mobile devices provided to staff and the levels of secure encryption and authentication procedures that need to be built in. Employers should note that data protection rules apply equally whether the data processing takes place on-site or on an employee’s mobile device.
Set up costs and insurance
Another factor that featured in the submissions is the initial set up costs of working from home. As it stands, the physical equipment, the risk assessment and the cost of any adaptations required to comply with health & safety standards will all be at the employer’s expense. The submissions also reflected that employers wanted clarity on how work-related accidents and/or damage of equipment are covered by insurance, both at home or in another remote location.
We also recently learned that the Oireachtas committee on Enterprise, Trade and Employment has agreed to include a discussion of a four-day week in its draft programme. While a four-day week has been adopted by certain individual employers who have used it as a way to differentiate themselves, it remains to be seen if the practice is feasible on a wider scale. It is notable however that legislators are now discussing the idea.