In the wake of eased pandemic restrictions earlier this year and a slow transition out of the default "work from home where you can" position, many employers opted to trial a hybrid working arrangement: a combination of in-office and remote days. Having spoken to clients and analysed their feedback in relation to the return to the workplace, an overwhelming majority of employees enjoy hybrid working. Hybrid working can have many advantages such as increased productivity, improved work-life balance and increased employee satisfaction. It offers flexibility and gives employees autonomy in how they shape their working day.

However, there is no size fits all approach to hybrid work. Almost a year after the introduction of this new way of working, we reflect on some of the key legal and practical challenges our clients are facing arising from this new work model and what measures are being taken by employers to address such challenges.

Key Issues

Performance Management

Employers were forced to quickly adapt to a new way of working following the changes ushered into the workplace on foot of the COVID-19 pandemic. As a result of the focus placed on the introduction of this new working arrangement, managing employee performance took a backseat for a significant period of time. Now with hybrid working having become the new norm, employers are grappling with how to best to manage employee performance and development for the long term. Of much greater concern to a lot of employers at this point is addressing what are being described as COVID-19 legacy performing issues amongst employees with many employers now seeking to tackle such issues as a matter of priority.

Despite the ever-changing work environment, the principles of good performance management continue to apply to employees. However, additional factors and challenges need to be considered in order to address performance issues. Employers are beginning to rethink and restructure their performance models for a hybrid workforce, in particular revising the appropriate policies for dealing with the area of performance management. Employers are also investing significant time and resources in the upskilling of managers so as to ensure they have the necessary skills to support and supervise remote teams. The hybrid working environment has highlighted the importance of communicating with employees to ensure they understand what is expected of them, identifying and setting objectives and evaluating performance.

Core Working Days / Anchor Days

Employers are also facing difficulty navigating the challenge of encouraging employees back to the office. While most employers are willing to honour some degree of hybrid working arrangement, there is a clear concern around sustaining team performance and culture together with the development of more junior employees if employees do not have in-person office experiences.

In an effort to address their concerns, the majority of employers are introducing "core working days" with the majority of employers requiring employees to be present in the office for either 2 or 3 days a week. Separate to that, many employers have introduced the concept of a team 'anchor day' meaning that all employees in a particular department or office as the case may be are required to be present in the office on that day. Anchor days are more commonly being required on a monthly basis, however some employers are introducing a bi-weekly anchor day with the aim of getting full teams together for group meetings and a general in-person catch-up. Where employees are continuing to resist core working days or anchor days, employers are relying on incentives as an effective tool to encourage employees to return to the office, for example, introducing free meals and wellness programmes. For the most part, core working days appear to be acceptable amongst employees, however, where this approach is not accepted by employees, employers are facing real challenges with mandating attendance on such days because employees will otherwise simply leave to join a competitor who will offer a more flexible hybrid work model.

Health and Safety

Hybrid working has presented employers with new and evolving challenges around health and safety in the remote working environment. Irish health and safety law places a statutory obligation on employers to ensure, as far as reasonably practicable, that their employees are working in a safe environment and this obligation stretches to hybrid workstations.

Employers are focusing on updating health and safety policies to take into account remote working options, communicating employee health and safety obligations and providing training in managing safety issues while working remotely. From a practical perspective, employers are carrying out virtual inspections, working from home checklists, and consultations with employees in respect of the office set-up, etc. While not legally required, a number of employers are also providing employees with suitable equipment to ensure employee health and safety, and increase productivity.

Working Hours

The lack of visibility on employee working hours presents a real issue for employers when employees are working from home. This, coupled with new-found employee patterns of working through lunch and failing to switch-off at the end of the work day, is a matter that employers are forced to address in the hybrid working environment.

Organisations are beginning to recognise the impact that the "always on" culture is having on employees. In order to address this, employers are focusing on setting clear expectations in relation to the level of work required of employees. As the hybrid working environment allows employees to work outside of conventional working hours, we are seeing a growing number of employees updating their signature blocks in order to address any assumption that employees are required to replicate their colleagues' working hours, for example, "I am sending this email during my working hours but, I do not expect a response or action outside your own working hours". Alternatively, some employees prefer to include the level of urgency in the email subject line or avail of the delay email function.

Employee Wellbeing

As outlined above, the 'new normal' has revealed a hurdle for employers to overcome in managing employee wellbeing. More than ever before, the conversation on mental health is at fore of many organisations with many employees expressing feelings of isolation.

Organisational culture shifts, COVID-19 related challenges and unclear work-life boundaries are among the factors that have played their hand in increased stress-related illness, burnout, and anxiety in the workplace. As a knock-on effect, employers are experiencing a build-up of long term sickness absences, performance related issues, and a break-down in employee relations.

To tackle these concerns, employers are adopting effective interventions for a blended way of working by introducing mental health awareness programmes and wellbeing / health initiatives in the workplace. While it is important to update policies on the right to disconnect, health and safety, and homeworking / remote working, employers are focusing on communicating and engaging with employees on hybrid working updates. In an effort to understand where there may be specific problems or strengths that can be learned from, we have seen a number of employers carry out regular employee engagement surveys so as to best address the needs of their workforce.

Tax

COVID-19 opened the door to Irish employers facilitating remote working of their employees from oversees destinations. Early indications are showing that some employers are opting to introduce this on a permanent footing by allowing employees to work abroad for up to four weeks each year.

We provided a more detailed overview of the tax considerations associated with employees working abroad in September 2020 – accessible here. In broad terms, an employee's presence abroad can give rise to foreign payroll and / or permanent establishment (PE) implications; however, if the time abroad is kept at a relatively low level (for example, for four weeks each year), then any risk here should be low in practice (albeit it hinges primarily on the foreign law of the jurisdiction in question).

A particular issue we have seen arise for some clients specific to new hybrid working arrangements is managing the tax and social security complexity and compliance where employees live and work on opposite sides of the Irish border. Taking the example of an Irish-based employer hiring employees from Northern Ireland, in a pre- COVID-19 world, where all (or substantially all) of the employment duties were carried out in Ireland, we would not expect UK payroll taxes or permanent establishment issues to arise for consideration. If, however, the same employees now work two days of the week from their homes in Northern Ireland, it could result in UK payroll taxes applying to a portion of the employees' income and it could also result in the obligation to pay social security shifting from Ireland to the UK. Depending on the activities being carried out, it could also give rise to UK PE concerns.

In terms of the reverse scenario of an Irish-based employee working for a UK company (wholly or mainly in Northern Ireland or Britain), such an employee would typically look to rely on Ireland's transborder workers' relief to ensure there is no residual tax liability in Ireland. The COVID-19 concessionary measures that applied to transborder workers' relief were in place for a longer period than many other similar concessionary measures (only falling away entirely from 1 April 2022). Clearly, however, if an employee is looking to add a hybrid element to arrangements post-1 April 2022, this is likely to fall foul of the conditions. From the employer's perspective, any such hybrid arrangement would be likely to result in an Irish payroll tax obligation arising at a minimum (and a potential shift in the jurisdiction of social security contributions). Irish PE risk for the non-Irish employer may also require further consideration.

In summary, employments with a cross-border element do not sit easily with hybrid working arrangements. Whilst split contracts could be considered (ie, an Irish contract with the Irish entity solely referable to Irish duties and a UK contract with a UK company, assuming one exists, solely referable to UK duties), this clearly adds significant administrative complexity to an employment, as well as additional corporation tax considerations.

Confidentiality / GDPR

As remote work environments vary, and are more difficult to secure than a traditional office, employers are faced with the challenge of ensuring confidentiality of sensitive commercial information and personal data. In order to address these concerns, employers are updating their hybrid working policies and procedures to confirm employee obligations relating to data security while working remotely. Employers are also implementing security measures for devices and networks such as multi-level authentication, access control and automatic log-off. These measures can themselves come with GDPR complications – technologies which collect additional data about an employee (particularly in their own home) will create new data protection compliance obligations. Employers are also increasingly conscious of their obligations with regard to the sharing of personal data internationally, particularly as employees avail of new opportunities to work remotely from countries outside Europe.

Conclusion

While the COVID-19 pandemic created a wave of uncertainty in all aspects of our personal and professional lives, what is abundantly clear is that the future of work is flexibility. As a result, employers will be forced to focus on hybrid working arrangements for the foreseeable future.

However, it is important to preface that the current form of hybrid working has been developed in a vacuum of any legislative framework for modern working arrangements post- COVID-19. It was recently announced that the right to request remote work will be introduced through the Work Life Balance and Miscellaneous Provisions Bill 2022. This "Integrated Bill" is expected to be enacted by the end of this year with the intention that requests for remote/flexible work will be more streamlined and governed bythe same piece of legislation. Further, there will be a new Workplace Relations Commission Code of Practice providing guidance to employers and employees on their obligations regarding compliance. The Work Life Balance and Miscellaneous Provisions Bill 2022 is currently working its way through the stages of the legislative process and we await publication of the amendments to reflect the recently announced integration of both Bills.