In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.
Do employees have a right to continue working from home after the lockdown restrictions have lifted?
Under Irish law employees do not have the right to continue working from home when the lockdown restrictions end. There is a new Code of Practice which gives employees the right to request homeworking. The Code of Practice sets out a procedure whereby the employee and employer engage and consult on the issue of working from home. Similar to the UK, employers in Ireland should be mindful of potential discrimination issues when considering requests for home working arrangements.
Should employers have a policy dealing with home working and what are the key points?
Yes, this is a strongly advisable. It is important that employers are consistent in their approach and that requests to work remotely are dealt with in a fair manner in line with a clear policy. Until the COVID-19 vaccines are widely available, employers will be expected to show flexibility towards employees who are considered "high risk" or employees with family members who are "high risk" by allowing those employees to continue to work remotely, where practicable. As referred to above there is a Code of Practice dealing with the right of an employee to request home working. Every employer should be familiar with this Code of Practice in preparation for the return to work. It is important to have a robust remote working policy in place, which reflects best practice and the organisation’s own remote work strategy. The policy should set out the employer’s expectations of employees that work remotely, as well as how remote working is intended to work in practice. This policy should be reviewed continuously and updated as appropriate from time to time. Employers must remain mindful of their obligations under the Safety, Health and Work Act 2005, which continues to apply in the same way they do for employees who attend the workplace. Employers should develop a specific remote working risk assessment to be completed by employees. This will form part of an assessment of the employee's home-working station to ensure the employee has a safe place of work. Key points include:
- How to apply for homeworking, including what employees will need to be able to demonstrate in order to be successful with an application.
- What equipment will be needed and the employee's responsibilities with regard to the equipment.
- Clear guidance on data security and confidentiality.
- Health and safety issues when working from home.
- The right to review the situation.
Other Issues to consider include:
- The Organisation of Working Time Act, 1997 continues to apply to employees who work remotely. Employees are entitled to their usual breaks and rest periods as set out in the legislation and are not permitted to work more than a maximum of 48 hours per week, over a set reference period.
- Employers continue to be required to maintain certain records of working time for remote workers, under the working time legislation. Therefore, employers should establish (where not already in place) a system to monitor working hours, breaks and rest periods to ensure that they do not inadvertently fall foul of the working time legislation. As the lines between work and home life can become blurred at times for employees working remotely, it is important that employers ensure that employees are taking the appropriate breaks/ rest periods and remind employees to take such breaks.
- Employers are encouraged to review and update internal employment policies as necessary to ensure that they are fit for purpose in the context of remote working. For example, internal disciplinary and grievance polices should be updated to allow for meetings to be conducted remotely, where necessary.
- Separately, employees should be reminded of the various polices that apply notwithstanding that some or all employees may be working remotely i.e. dignity at work/ anti-bullying and harassment policies.
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?
As a general rule an employer cannot unilaterally amend terms and conditions of employment. It is important that the employer engages with the employee in relation to homeworking. Any changes to the contract of employment should be agreed with the employee in writing. If an employer is merely giving the employee the right to work from home if they so wish then it is clearly not an issue. However, where an employer wishes to arrive at a situation where an employee who was previously full time in the office will going forward only work one or two days in the office then a change to the contract of employment is required.
Do employees have any entitlement to allowances/benefits if required to work from home?
This is ultimately a matter of negotiation between the employer and employee. Strictly speaking there is no legal entitlement to provide an employee with an allowance or additional benefits to work from home. Very often an employer will say that the right to work from home is a benefit in itself as it will save the employee time and money in avoiding commuting to work. There are some very small tax reliefs for employees who works from home. Employers should consider employee benefits to ensure that wellbeing programs provide appropriate support to remote workers, including mental health services. Again, a good communication plan is important and to have meaningful engagement with employees. This is an opportunity for employers to show their commitment to their employees and to nurture and promote trust in the employment relationship.
What are the key trends in relation to home working?
In Ireland, similar to the UK and other jurisdictions there is a marked trend towards homeworking. Hybrid working appears to be the most common, where an employee will work two days in the office and three days at home or variations of this. It is likely that over time there will be an opportunity for many workers to consider living outside of Dublin and the other main cities to more rural areas provided there is high quality broadband.