Remote Working

In March 2020 huge numbers of employees abruptly found themselves working from home as a result of the Covid-19 lockdown. Makeshift home offices consisting of laptops and mobile phones were set up on kitchen tables, on beds and couches, and in any spare rooms across the country.

While many employers were preparing "return to work" plans over the summer, recent government guidance means many of those plans have been put on hold or abandoned entirely. The government's new plan, Resilience and Recovery 2020-2021 – Plan for Living with COVID-19 outlines five distinct alert levels and outlines what office based employees should do at each level as follows:

As our society prepares to live with the Covid-19 pandemic for the foreseeable future, it is clear that many employees will continue to work from home indefinitely. The question arises as to whether the ad hoc arrangements put in place on an emergency basis by employers to ensure continuity of business and preservation of jobs are sufficient when working from home on a long term basis.

What Laws Apply to Working from Home?

There is no specific regulation governing remote or flexible working in Ireland. Instead, the usual employment law statutes and principles continue to apply. Employers have the same obligations to employees who work from home as they do to employees working in the office. This applies equally to working hours and rest breaks, health and safety, data protection and confidentiality, annual leave entitlements and fair procedures when it comes to any disciplinary processes.

What Are the Main Health and Safety Considerations for Employers When Employees Are Working from Home?

Employers have the same responsibility and duty of care for the health and safety of employees who work from home as for any other employees.

Irish legislation requires employers to carry out risk assessments of workplaces in order to identify (and then eliminate or mitigate) the hazards and risks to which their employees may be exposed, and to establish the general suitability of a location for home-working. As home visits may not be feasible in the current environment, a home-office risk assessment can take the form of a short self-assessment questionnaire which the employee must fill in.

Guidance published by the Health and Safety Authority (HSA) suggests that, when it comes to a working from home arrangement, an employer is obliged to ensure:  

• that the employee is aware of any specific risks regarding working from home;
• that the work activity and the temporary workspace are suitable;
• that they provide suitable equipment to enable the work to be done; and
• that there is a pre-arranged means of contact.

In the event that the risk assessment determines certain equipment or alterations to the home work environment are required, in order to comply with Irish legislation, employers should cover the cost of same. This may require an employer to provide home workers with a desk, monitor, keyboard, ergonomic chair, etc.

Employers should give specific instruction and training in relation to preventative and protective measures regarding safe working practices.  In addition, employers should ensure there is adequate insurance cover in place for any injury or damage that may be suffered by home workers in the course of their duties.

From a practical perspective, employers should regularly communicate with employees and provide them with guidance for working from home e.g. how to work from home securely, how to set up their workspace/ergonomic tips, how to plan the day, the importance of rest and breaks, how to effectively work with colleagues remotely and the importance of information security.

Employees should be reminded of their own health and safety duties while working in the home, including: 

• to take reasonable care to protect their  health and safety;
• not to engage in improper behaviour that will endanger themselves;
• not to be under the influence of drink or drugs while working from home; and
• to report any defects in the place of work or equipment which might be a danger to health and safety.

Are Employers Obliged to Take Steps to Prevent Isolation Where Employees Are Working from Home?

HSA guidance suggests that employers must take pro-active steps to address workplace isolation that can arise in connection with working from home and, in this regard, the HSA has recommended employers consider the following:

• ensuring up to date contact details for employees are on file with an agreed means of contact;
• arranging regular updates via phone, web or email with each employee;
• providing employees with emergency contact numbers;
• arranging IT support in the event of technical problems where relevant;
• providing employees with information detailing when it is important for them to contact their employer;
• making sure work is organised in such a way that employees take regular breaks and can separate work life and personal life;
• providing employees with regular feedback on their work; and
• encouraging employees to maintain contact with colleagues.

Is a written agreement required to implement a working from home arrangement?

No, it is not necessary for a formal agreement to be entered into with employees if working from home is a temporary/emergency measure which has been put in place as a result of the COVID-19 pandemic and consequent government restrictions. However, if working from home will be a more permanent change for employees, it may be necessary to update employees' contracts of employment to reflect this new arrangement. This can be done by way of an addendum or side letter.

In addition, it is highly recommended (i) that employees are given adequate training and information about the arrangement; and (ii) that a robust remote working policy is in place, which employees are aware of and have access to.

Should Any Other Workplace Policies Be Updated When Employees Are Working from Home? 

There is no obligation to introduce new policies for home-workers during this pandemic. However, many employers have introduced temporary COVID-19 specific policies, such as Health and Safety Policies, Annual Leave Policies and Clean Desk Polices.

Working from home for such a prolonged basis is new to most organisations and employees so it is important to establish the ground rules and ways of working at an early stage. This is of benefit to employees so they know what is expected of them and of benefit to employers when it comes to maintaining standards of operating and holding employees accountable to those standards.

Culture eats policy for breakfast so it is important that staff buy into any new policies and employers must ensure training and consistent implementation of any new policies.

What If Employees Decide To "Work from Home" From Another Jurisdiction?

As travel restrictions were imposed throughout the world earlier this year, many employees who were not required to work from their Irish office left Ireland to return to their home countries. Many will now have been working for Irish companies from foreign jurisdictions for more than six months now. 

This may have serious implications including the potential for tax liabilities for both employer and employee in the foreign jurisdiction. There is also a risk that employees may be subject to mandatory employment laws of countries in which their employer doesn’t have a presence and is therefore unfamiliar with the legal landscape. 

Management issues may also arise if employees are spread across multiple time zones or employees do not want to return to Ireland when the office reopens.

It is no surprise that some organisations are reportedly asking their employees currently working abroad to return to the country in which they are employed for tax and legal reasons. Other employers may follow suit.

It is important that employers entering into such arrangements give consideration to all the potential impacts and put appropriate contractual documentation in place.  

Are There Any Particular Data Protection Considerations to Be Aware of When Employees Are Working from Home?

Yes, as employees may live with other people, may have visitors to their home and may bring their work laptops to a café to work, there are increased data protection concerns for employers when employees work from home.

The Data Protection Commission has issued some helpful guidance for employers to assist them to protect their data when employees are working remotely. 

Employers should ensure that any devices that employees are using to work remotely have adequate security software installed. Employees should also be provided with information and training to ensure confidential company information is kept safe and secure when working remotely. Some employers are bringing in "clean desk" policies for remote workers for this reason. 

Are Employers Responsible for Ensuring Employees Get Adequate Rest Breaks When Working from Home? 

Yes, there is an obligation on employers to ensure that employees are availing of their minimum statutory rest periods and not exceeding their maximum weekly working hours while working remotely. In general employees should have a rest break of 11 hours between consecutive shifts (i.e. work days) and should not work on average more than 48 hours per week.

The Organisation of Working Time Act requires employers to keep a record of hours worked and breaks taken by employees. Employers must adopt systems and methods of working that allow them to monitor working hours for their remote workers. A failure to maintain adequate records will make it extremely difficult for an employer to defend any claim under the Organisation of Working Time Act.

This area is increasingly important as numerous surveys show that employees working from home are working longer hours than normal, may be more inclined to log on outside their normal office hours, can find it hard to disconnect from work and more broadly are finding it hard to separate their work and personal lives. It is important that employers reinforce the importance of taking rest breaks and switching off.

National Guidance for Working Remotely during Covid-19

In December 2019 the Department of Business, Enterprise and Innovation published Remote Work in Ireland, 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 is a need for national guidance for employers and employees seeking to engage with remote working solutions. In response to the unprecedented number of people working from home as a result of COVID-19, DBEI has published Guidance for Working Remotely during COVID-19 detailing where information can be found on each of these areas and a consultation on this publication closed on the 7^th August this year.  The information received from the consultation will be used to shape public policy on remote working.  Find out more about the publication here.