2020 will certainly go down in the history books as a year to remember. The much sought-after work from home (WFH) option became a reality almost overnight for many.

Now nearly nine months on since the pandemic started and with the anticipation of a mass rollout of a vaccine in 2021, we recap on some of the key issues that faced employers in 2020 as they dealt with remote working. We also look optimistically at what might be ahead as employers contemplate the physical return to the office workspace.

Remote working – the year it became a reality

WFH once a much sought after flexible work option, became a necessity in 2020 as a result of public health guidelines that mandated those employees who could work from home, to do so. Currently, remote working is a temporary agreement between an employee and employer to allow employees work from a non-office location in compliance with public health guidelines. It is not a change in contractual terms. The rollout of a vaccine in 2021 means employers can anticipate some opening of physical offices again and whilst applications for more long-term or permanent remote working arrangements are not being considered during the current crisis, employers can anticipate that once the public health advice changes and physical offices begin to re-open, they will receive applications for more permanent WFH arrangements.

It is thought that many employees will request to WFH at least for some of the working week with a blended or hybrid approach being favoured by the majority. A recent PWC survey noted that 61% of Irish companies are investigating how to make remote working a permanent option for their employees. The Government has also felt the pressure in this space with the publication of two Private Members Bill, the Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020 and the Working from Home Bill 2020.

It is unlikely that there will be a legislative basis for WFH in the short term but until such time that there is, employers need to continue to be mindful of issues around WFH and start planning for a return to the office and anticipate an increase in working from home requests. Below is a brief reminder of some of the key action points:

  • Remote working or WFH policy - Like most aspects of employment law, having a policy in place setting out guidance, expectations and parameters for employees is the starting point. If a business doesn’t have one, it is advisable to put one in place at the earliest opportunity. Where employers have one in place, it should be reviewed and amended to reflect the up to date arrangements.
  • Health and Safety - Employers owe their employees a duty of care, even when they are working remotely. Employers and employees are still bound by their obligations under the Safety Health and Welfare at Work Act 2005. Strictly speaking an employer should conduct a risk assessment of an employee's home office however given the speed at which COVID 19 evolved this has not, in most cases, happened. Going forward however this is something employers should look at particularly where the arrangement is being formalised or put on a permanent footing. In any event, employees should be aware of their obligation to report any risks and any work-related accidents. Employers also need to consider their response if an accident such as a fire occurs in the employee's home.
  • Working time and records - Employers are obliged under the Organisation of Working Time Act 1997 to maintain a record of employee hours and ensure that rest breaks are taken. This obligation can be more challenging for remote workers as the lines between personal and professional lives become increasingly blurred. This has resulted in calls for a formal right to disconnect evidenced in one of the more recent Private Member's Bills. Employees should be encouraged to keep a log of their hours to ensure that employers can meet this statutory requirement. It is likely that new and innovative ways to ensure compliance with working time requirements will have to be explored for roles that have more non-traditional means of time keeping.
  • Information technology and confidentiality - Employees should be aware of the provisions of an employer's IT and confidentiality policies. Employees should be informed of their obligation to keep company information secure, prevent others accessing confidential information and ensure steps are taken to dispose of confidential material properly. This is even more important when confidential and sensitive information is being handled at home.
  • Data protection - Employers should ensure they have up to date contact details for all staff and that these are processed in line with GDPR requirements. An employer's Data Privacy Notice may need to be reviewed to see if it adequately deals with COVID 19 data processing. Employers are likely to be dealing with an increased amount of employee data from medical issues, leave requests to illness benefits and the appropriate level of caution in processing these to ensure GDPR compliance must be exercised.
  • The role of HR and communication - HR teams will become more central to the business and connectivity than ever before. Communicating with employees is vital to preserve a good working relationship, to maintain staff morale and to ensure productivity levels remain on track in these unprecedented times. Virtual meetings and calls are important to check in on staff and agree tasks and roles but also as important as some social chit chat and interaction.

The current crisis has shown employers need to exercise a degree of flexibility and this element of flexibility will be key as employers look to 2021.

What to expect in 2021

As employers prepare for a return to the office it is likely they will have to deal with a range of legal and practical issues. They can anticipate some employees unwilling or reluctant to return to the workplace which in turn may lead to contractual disputes, workplace grievances and employee relation issues. Employees could argue that as they were able to work from home this amounted to an implied variation to their contract. In general terms, it is unlikely that such an argument would succeed but much will depend on the circumstances of each case. Employees could also allege some form of discrimination on the grounds of gender or family status if childcare was rearranged to facilitate the WFH option. Employers on the other hand could invoke some form of misconduct or performance proceedings. There is also the possibility that, some employers might prefer employees to remain at home permanently where for example space is at a premium. Most employment contracts have a clause allowing an employer to change the place of work but any variation to the contract of employment should be by agreement. There is no doubt that a return to the workplace will present practical, logistical and legal challenges which employers should be anticipating and preparing for now.

The vaccine itself raises numerous legal and practical issues for employers. In the absence of a government mandated requirement, there is no legal basis for requiring staff to obtain a vaccine. Employers who prevent employees attending the workplace for not getting the vaccine are on tricky ground. There could be numerous reasons why an employee might not want to be vaccinated, whether for religious reasons or due to some pre–existing health issue. Irish employees could claim discrimination if disciplined for not getting the vaccine and told not to attend a workplace and/or they could invoke some of their personal rights both under the Irish Constitution and European Convention on Human Rights in challenging any employer mandated vaccination programme. The key action to minimise risk of conflict and litigation is to communicate and engage with employees regarding a return to the workplace and the rollout of any vaccination programme.

The pandemic has caused huge economic upheaval and the full scale of this may only begin to emerge in in 2021. Many employers particularly those in sectors hardest hit by the pandemic such as hospitality, travel and tourism will likely have to engage in some form of business restructuring which may result in redundancies both at individual and collective level. When the current Government supports such as the Employment Wage Subsidy Scheme and Pandemic Unemployment Payment (PUP) expire, employers will have to make hard decisions and will need to be informed as to options open to them.

Overall, notwithstanding the huge changes in the workplace, it has largely been a positive experience for employers and employees to date with relatively few disputes. Whether that remains the case in 2021, time will tell.

For more information please contact Sandra Masterson Power, Sinead Grace or your usual contact in Beauchamps.

About the author

Sandra is a partner and head of our employment and benefits team. Sandra provides legal advice and business risk support to key clients, managers, directors, CEOs and Board members within the private sector and public sector across a range of contentious and non-contentious employee, governance and business-related areas and issues.

Prior to joining Beauchamps, Sandra was an Employment Partner and Head of Knowledge, Learning and Development at an Irish law firm.