Employers need to have plans in place to respond in a timely and effective manner to employee requests to work remotely, says Moira Grassick, managing director at Peninsula Ireland.

A specialist employment law consultancy, Peninsula Ireland is advising employers to have a written policy in place to ensure that employees understand their position on remote working.

This advice follows the recent publication by the Department of Enterprise, Trade and Employment (DETE) of its findings from a public consultation to discuss the key points of the bill allowing employees to work remotely.

“As part of the consultation process, we suggested that there should be a preliminary year-long period of service before an employee is able to request remote working, and 31% of those surveyed agreed with this suggestion,” said Moira Grassick. “However, almost one in four believe that workers should be allowed to request for remote work immediately.

“From our perspective, if a new employee engages in the recruitment process based on working at the employer’s place of work only to then immediately request remote working as soon as they start work it could cause difficulties, including with other longer-serving employees.”

With the Government having set September 20 as a proposed start date for a phased return to the workplace to begin, accompanied by a new Work Safely Protocol, employers and employees alike are sharpening their focus on how this return will be managed.

A lot of that focus will centre on health and safety. As part of the overall guidance, this week’s guidelines updated the advice for employers around hand and respiratory hygiene, physical distancing and ventilation in the workplace.

The findings from the DETE’s discussions, however, showed that many employers will also need guidance on any burden of responsibility they may have to carry for employees working from home.

It seems that, for most companies, the pandemic has fast-tracked a shift in work culture before structures governing remote work could be given time for full employer-employee discussion.

“The DETE consultation process highlighted that around 44% of employers say they are ‘not confident’ in carrying out risk assessments for an employee’s proposed remote workplace and are concerned that they may be liable for injuries occurring because of remote working,” said Moira Grassick.

“The introduction of a statutory right for remote working is extremely worrying for employers and clarity from the DETE and health and safety Authority will be crucial.”

Irish discussions around remote work do predate the pandemic. In December 2019, the DETE published a report on the prevalence and types of remote working solutions in Ireland, the attitudes towards them and influencing factors for employees and employers when engaging with these solutions.

The report found that there was a need for national guidance for employers and employees seeking to engage with remote working solutions. The DETE committed to the delivery of this guidance; then Covid happened.

“Every employer should put a written policy in place to ensure that employees understand their position on remote working,” advises Moira Grassick. “This would be in conjunction with a clear Code of Practice from the DETE and would need to set out the specific reasons for which a request for remote working could be turned down.

“An employer can refuse any request; for example, jobs that require face-to-face interaction or physical labour. Both parties can suggest a hybrid working pattern as a happy medium between employer and employee, but this can also be rejected.”

It seems that employers will also be responsible for financing the transition to any hybrid working model. The current thinking is that it is unlikely that an employer will be required to provide workers with an identical home workstation to that of the office workplace.

Employers will also very likely be allowed to monitor a worker’s remote activity to a reasonable degree, so that they can measure and analyse their performance and engagement.

Moira Grassick notes: “Employers do have a legitimate interest in monitoring employee activity, and it is submitted that this particularly extends to individuals who are working remotely and not under direct supervision.

“This is an area which is already heavily regulated and litigated, both in respect of the Data Protection Acts but also in respect of case law emanating from bodies like the European Court of Human Rights, so should not be a major concern.

“We strongly recommend that employers start preparing their policies and procedures for remote working requests now, rather than waiting until the last minute when they could be inundated. People have got used to working remotely during the pandemic and, with many looking to continue this practice, it makes sense for employers to be prepared.”

As regards the return to the workplace, she advises employers to talk with any workers about their fears of contracting coronavirus, especially if they are clinically vulnerable.

“Rather than requiring employees to return (e.g. stating that an employee will lose their job if they don’t return), it is important to first determine why the employee is reluctant. Employers have a duty of care to safeguard the health, safety and wellbeing of their employees and this has not changed, despite the Government’s change in guidance.”