An early morning run on the beach or walk along the riverbank – followed by coffee and croissants as we sit at our ergonomically designed and sound-proofed home office with uninterrupted views of the sea or the countryside?
And then there is reality!! No beach, no river – a shared “office”- a concrete jungle view; home schooling; you get the picture.
Remote working is so attractive because it makes us believe we can have it all.
It is a lifestyle choice, right? …..just with most of choice bit taken out.
There is no single set- up for everyone; no “one size fits all” solution
And then there are the legal implications of remote working. Yes, the law, will have its say, just as it does on so many other aspects of our lives.
Remote working has been around for years. Different “industries” in different countries have taken the lead and in general Governments have been playing catch-up. Over the last 12 months COVID 19 has thrown how we work into sharp focus.
Earlier this year the Tánaiste, Leo Varadkar, published the Government’s National Remote Work Strategy – Making Remote Work.
Its main action points are:
- Mandating that remote work should become the “norm” for 20% of public sector employment
- Review the tax and expenditure implications of remote working in the next Budget
- Mapping and investing in “remote working hubs” across the country
- Legislating for the right to request remote working.
- Developing a Code of Practice for the right to Disconnect.
- Doing what we can to accelerate the provision of high-speed broadband to all parts of Ireland.
So far so good.
The stated objective of the Plan is to “ensure remote work is a permanent feature in the Irish Workplace” which is very open- ended. On what scale though and at what costs? Not so easy.
The Plan does specifically point out that we should not conflate remote working during a pandemic with remote work under what it calls a “regular scenario”. As the vaccine programme progresses more and more people will be eligible to return to their established workplace and until that happens, we won’t have a clear understanding of the true extent of the changes that will be required to implement the strategy and the vexed question of how much it will cost.
What are some of the main legal issues associated with remote working?
- Health & Safety
At a basic level remote working for a company with, say, 25 employees and one established workplace will potentially mean that company now has 26 workplaces.
One of the key pieces of law in place to keep employees safe is the 2005 Safety, Health, & Welfare at Work act which was introduced in 2005 and imposes obligations on the employer to provide a safe place of work and a safe system of work, with substantial financial penalties should it fail to do so.
This legislation would have been designed with conventional offices and work premises in mind and there has been no health & safety legislation enacted that specifically addresses the health & safety obligations of employers and the protections to be afforded to employees who work at home.
If one assumes that a home office is to attract all of the legal protections of a conventional office then this clearly is going to put a massive financial and practical burden on employers. Some will have the size, scale and financial might to do it; smaller employers, who make up the vast majority of businesses in this country will not.
Is an employer expected to go out to the homes of their employees and vet them from a health & safety perspective? What happens if an employer discovers the house is unsuitable for remote working by reference to their checklist and how “legal” is that checklist?
- Data Protection
Ever since the General Data Protection Regulations were enacted in this country in 2018, we have all become much more aware of our legal rights in respect of our own personal data and our obligations to the personal data of others.
Remote working by its nature increases the number of channels through which sensitive personal data has to travel and in so doing creates a much greater risk to the security and integrity of such data.
As workplaces increase their remote working cohort, it will be incumbent on employers to invest adequate resources in their I.T. infrastructure to ensure it is robust enough to withstand certainly the most obvious attacks. This burden is increasing as the cyber-fraudster become increasingly adept at breaching the defences.
The availability of high-speed broadband is a hot topic and the national roll-out plan has been beset by controversy. It may be that for some – hopefully very few – their location will mean remote working will just not be a viable option due to poor broadband connectivity. It is, however, a critical piece of the jigsaw and must be successful.
- Insurance
The costs of insurance are increasing across the board. Traditionally, public liability insurance and employer liability insurance for places of work are based either on an employer having a single premises or a number of defined branches which have established security and safety features.
If an organisation with one HQ and 20 employees plans to “go remote” it will have 21 workplaces and what are the implications of this from an insurance perspective? Several immediate issues spring to mind:
- Lack of effective supervision of the work
- Lack of effective supervision on the visitors to the “premises”.
- Increased level of physical hazards
- Unrelated accidents
- GDPR/ cyber security implications
It is clear from the foregoing that a plan to go remote will require a detailed sit-down between the employer and their insurer/broker to ensure that additional risks that are likely to come into being with remote working are covered as fully as possible. It could be that the plan is scuppered by an unaffordable premium hike.
- Work-Life Balance
One of the drivers behind remote working is to help employees achieve a better work /life balance. However, the irony of moving work home is that it can blur the lines between the two and act as a stressor rather than a stress reliver.
As the Government’s Strategy points out creating a “conducive environment” is critical. In this regard the employee’s connectedness to work is a source of worry as they struggle to “switch off”. So much so that the Government Strategy puts forwards a right to disconnect from work to combat the phenomenon of being “always on call”.
However, the Strategy only refers to a Code of Practice in this area rather than legislation and the obvious question is whether or not the Code would have legislative footing. It is difficult to see how such a Code could gain traction without having legislative teeth.
The Strategy goes further when it comes to the legal status of remote working. It is envisaged that employees would have the right to request it and presumably the corollary will be that the employer will have to have good reason to refuse it.
- Impact on identity, creativity, culture and productivity
Whilst not strictly employment law related matters, remote working will inevitably have a significant impact on each of these areas of the business – at least in the short -term and in doing so they will have an impact on the employer -employee relationship. Policies will have to be revised, devised and implemented to deal with the significant changes that remote working brings about. A failure to do this properly may well have legal ramifications for disgruntled employees. A collaborative approach between employer and employee is what is needed.
- Costs
Any transfer of thousands of employees from their workplace to their homes is going to come at a hefty financial cost. How much and who pays for it are questions that are going to have to be addressed.
It is not surprising to hear the Government’s Strategy is utterly silent on these questions.
A move to remote working on a national scale cannot happen in isolation. Government must make sure its remote working Strategy dovetails with its Communications Strategy, its Environmental strategy, its Regional Planning, as well as its strategies on housing, energy, transport, infrastructure and education. The list goes on. The truth is it affects everything
Some will ask can we afford to do it? Others will ask can we afford not to. As the world beyond our shores moves on, surely we will have to move with it to keep the country competitive.
What we do know from history over the last few hundred years is that significant developments in the workplace; including: automation, collective bargaining, computerisation have all had profound effects not just on the world of work but on society generally – in terms of where and how people live?
The issue of remote working may herald the dismantling or at least the re-configuration of the traditional office/ workplace as we know it. The bottom line is it’s here and here to stay and so we must embrace it and if it forces us to re-build/re-imagine the workplace and the legal scaffolding that surrounds it then so be it.
In his foreword to the Government’s Strategy the Tánaiste talks about wanting our city centres to “remain vibrant” and says our small towns and villages will see new investment. He wants to spread jobs across the country but not lose them to abroad.
Can we have it both ways? Can we have the panacea and throw away Pandora’s-box. The Tánaiste thinks we can. Time will tell.
If you or your business have any questions about the issues raised in this article, or about the responsibilities and risks associated with Remote Working please contact Brian Gill, 071 916 2032.