“Remote Working”, for obvious reasons, became one of the most discussed work related topics of 2020. Looking back to this time last year, so much has changed - the pre-pandemic working arrangements up to early 2020 now no longer seem like the modern era. The global shift to working from home became essential for service delivery as well as part of society’s efforts to supress the pandemic by reducing circulation and social contacts – and all of this in circumstances where there was (at least in Ireland) little to no official guidance on implementing remote working arrangements.
A Government report of December 2019, Remote Work in Ireland, reflected that there was much work to be in done to get employers comfortable with remote working and moving away from unofficial and ad-hoc arrangements to more structured approaches. Following the sudden mass migration to remote working there was then in July 2020 a public consultation on Remote Work Guidance. This showed that many saw the benefits but employers continued to fear getting it wrong or sacrificing productivity.
Following that consultation process, the Government issued national guidance and committed to keeping it under close review. There may never be a better time for businesses to consider their current arrangements for, and also their longer term approach to, home working. In January 2021 we are in the midst of another lockdown. However, in some form or other, it is clear that remote working is here to stay.
Next Steps and Guidance
The typical employment contract and employer policy documents scarcely, if at all, contemplate remote work. At a minimum employers should put in place a remote working policy or update their existing one and ensure that their policies as a whole take account of the fact that staff will carry out their work from home and other locations. Policies that cover the areas of health and safety, technology and data protection will stand out as needing attention. Others warranting review include policies dealing with dignity at work and employee conduct. By way of example, disciplinary policies should now contain provisions taking account of remote working. All the risks which potentially arise should be considered and managed.
Employers should use the general guidance material now available as the starting point. The official guidance currently available to employers includes the following, amongst others:
- Guidance for Working Remotely.
- A Remote Working Checklist for Employers.
- A Guidance on Working from Home for Employers and Employees (Health and Safety Authority).
- Protecting personal data when working remotely – just one example of a number of guidance produced by the Data Protection Commissioner and available on its website.
Working Time and Disconnecting
Employers must also consider the challenges of managing working time for those who carry out some or all of their work from home and other locations. As matters stand employers have only, the now decades old, working time legislation. This is viewed by many as unsuitable to modern working patterns. The Workplace Relations Commission (WRC) is undertaking a public consultation with a view to drafting a Code of Practice on the ‘’Right to Disconnect’’. It is envisaged that a new Code will provide guidance on best practice and approaches to employee disengagement outside normal working hours. It will be admissible in evidence in tribunal proceedings and employers would be wise therefore to schedule a further review of the relevant policies following the publication of the Code.
Other countries, not to mention many businesses, have already put rules and guidance in place intended to safeguard non-working time. This is an area which is in need of specific attention and possibly legislation.
Key considerations for employers
The key issues for employers to consider in managing both the current remote working arrangements - and in deciding on how those arrangements may develop over time - include:
- Ensuring fitness for purpose of all internal policies and procedures to take account of their application both to conventional and remote work settings. The guidance documents are a useful starting point but do not provide specific advice for all aspects of this adaptation, for example, to manage potential unlawful discrimination issues.
- Working time should already be covered off by an employer in terms of recording working hours to ensure compliance with daily and weekly limits and entitlement to breaks. We know that many employers find this challenging, even without the complication of remote working. The WRC reminded employers at the start of the pandemic that “If you are working from home, the same rules regarding statutory breaks and rest periods that applied before COVID- 19 continue to apply”. Employers could be exposed if they do not monitor, manage and maintain a record of working time. Imminent guidance on disconnecting will almost certainly reflect a high standard for employers in their compliance with these employee protections.
- Employers need to consider the suitability of the homeworking environment from a health and safety perspective. The recent guidance documents provide clarity of the extent to which employers’ safeguarding obligations extend to the remote working space. Helpfully, it has now provided some practical guidance on how to fulfil those obligations e.g. examples as to how to conduct ergonomic assessments remotely.
- Mental health issues can arise as a result of enhanced work/life integration and in circumstances where employees may suffer isolation.
- Data protection and cyber security issues are of course front and centre for all remote working arrangements and the office of the Data Protection Commissioner has issued guidance which will no doubt be updated over time.
Employers are now moving to consider how remote working can fit within their organisations and their goals in the longer-term and not just on an emergency basis. A well designed approach stands to benefit businesses from a risk management perspective but is also likely to provide a competitive edge in terms of attracting and retaining talent into the future.
