Jennifer Cashman's Annual Review of Employment Law

Posted in : Webinar Recordings on 21 January 2021
Jennifer Cashman
Ronan Daly Jermyn
Issues covered: Remote Working; Right to Disconnect; COVID-19 vaccination

Jennifer Cashman, Partner and Practice Group Leader at Ronan Daly Jermyn is our keynote speaker at Legal Island's Annual Review of Employment Law conference (You can watch all of the session recordings from the two-day conference by unlocking access to our Annual Review of Employment Law Digital Bundle).

In order to help delegates maximise their return on investment and bring others up to date, Jennifer joins us to cover key new developments since November, summarising the law, advising on remedial actions and answering your questions.

In this webinar, Jennifer focuses on:

  • Developments in Remote Working, including the remote working strategy and proposed Code on the right to disconnect from work
  • Vaccinations and other C-19 Employment-related Issues
  • New Unified Code of Practice on Workplace Bullying

View Jennifer's Q&A Follow-up >

The Recording

Transcript

The webinar transcript will be abailable shortly.

Q&A Follow-up by Jennifer Cashman

What are the tax implications for employers and employees in working remotely from another country? Can employees in Ireland ask to return to their native county to continue to work for Irish company.

Firstly, I would caveat my response by saying that specific advice should be sought from a tax specialist, depending on which jurisdiction is in issue. However, the general position is that if employees of an Irish employer are working outside of Ireland, this could also have foreign payroll tax implications for the Irish employer. The foreign country may seek to tax employment income where the employee is carrying out the duties of his/her employment in that country. For countries with which Ireland has a double tax treaty, the treaty will limit the ability of the other country to tax income arising to an Irish resident individual. Typically, the treaty provides that the employment income is not taxable if the individual is present in the other country for less than 183 days and is working for an Irish employer which is not operating through a fixed base/permanent establishment in the other country. However, the specific facts and local rules should be examined to assess what foreign tax (and social security) obligations arise in the particular circumstances and whether the other country has relaxed its normal rules in light of Covid-19 travel restrictions.

The employees will also need to consider their personal tax situation if they spend enough time in the foreign country to become tax resident there.

Also, the issue of a “permanent establishment” arises. A permanent establishment (PE) is a taxable presence of an entity resident in another country. Where a company has a PE in another country, the profits attributable to the foreign PE may be taxed in the other country. In broad terms, a PE can be created if an employee concludes contracts in another country and/or if the company is considered to have a “fixed place of business” in the other country. In certain cases, a home office could be a fixed place of business, depending on the specific arrangements and the length of the WFH arrangement. It is therefore very important that employers give consideration to the role occupied by the employee working in a foreign jurisdiction and the working arrangements so as to ensure that allowing an employee to work from a foreign country does not have the effect of unwittingly creating a PE in that country.

Unfortunately, employers will not be able to pass any of the potential tax liability (other than any personal tax liability) risk onto the employee and so that is not a way of mitigating risk here.

Furthermore, there are potential employment law implications when employees are working abroad – along with additional HR complications of managing absence issues etc. in another country. Some companies have taken a zero-tolerance approach on any further working from abroad for the above reasons

Working from hubs – will employers need to review their IT policies in conjunction to ensure IT security issues are covered?

Yes, I don’t think employers will be required under the legislation to facilitate hub working but where an employer will facilitate it, the employer will need to look at IT security and review existing policies and procedures.

What kind of criteria might the employer need to consider in deciding whether or not to grant remote/flexible working?  If employers are not able to accommodate the employees request, will they need to provide the business reasons in writing and what business reasons would be acceptable?If an employee requests to work from home and the employer says no, do they legally have to provide sufficient reasons?

In the UK, there is a right to request flexible working, and if the employer rejects the request it must be for one of the business reasons set out in the legislation, as outlined below. This might give us some indication of what factors might be included in our legislation on remote work, but we will have to wait and see when the legislation is published later this year (Quarter 3 2021);

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • a detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural change to your business

What about the additional cost associated with setting up remote offices in compliance with Health and safety legislation?

We will have to wait and see whether the burden of additional costs will be a factor in our legislation which the employer can use to refuse a request (as set out in the UK legislation above).

What is the legal guidance for employers regarding ergonomic assessments of workstations for employees working from home?

The Health and Safety Authority has excellent guidance on remote working, which can be accessed here https://www.hsa.ie/eng/supports_for_business/business_and_education_supports/guidance_for_employers_and_employees_working_from_home/ 

This guide will enable employers and employees to understand the requirements when working from home and Appendix 1: Homeworking Risk Assessment/Checklist in the Guide is included to help employers and their employees to carry out an assessment of the home working environment as an online fillable form.

Separately, following its public consultation over the summer months, the Department of Business, Enterprise and Innovation (DBEI) has published an online live resource and checklist for employers and employees to manage remote working arrangements - https://enterprise.gov.ie/en/What-We-Do/Workplace-and-Skills/Remote-Working/.

Should a remote risk assessment be done for each employee working from home? Over Teams/Zoom, so we can see workspace etc.

Yes, see guidance above from the HSA and DBEI which will assist in this regard.

Is the recommendation that employers undertake virtual ergonomic assessments for remote workers?

Yes, see guidance above from the HSA and DBEI which will assist in this regard.

If an employee cannot work from home, might the legislation oblige employers to provide a workplace such as a hub?

Potentially but I would be surprised if the legislation went that far. The legislation may state that employers should consider whether or not it is feasible for employees to work from a hub, in the overall context of consideration of a request to work remotely, but I cannot see anything beyond that being included.

What are the GDPR/data security implications of working from a remote hub?

Mostly around confidentiality concerns and IT issues with use of Wi-Fi networks etc. Internal policies and procedures, and insurance policies, would need to be reviewed to see if changes were needed.  Guidance from the Data Protection Commission is available here - https://www.dataprotection.ie/en/dpc-guidance/blogs/protecting-personal-data-when-working-remotely

I am a member of two school Boards of Management. As you know, teachers are now working remotely, and I am wondering if Boards need to update policies to take account of this fact?

Yes, you may need to do so, particularly around remote teaching/learning. I sit on a Board of Management also and we have updated our policies and procedures and introduced some new policies around the new working/learning arrangements.

Jennifer, you mentioned that remote working would only be dealt with as a code of practice, but I thought there were plans to legislate later this year?

I confirmed that the right to disconnect will be addressed by way of a WRC Code of Practice and the right to remote work will be addressed by way of legislation in Quarter 3 2021, as provided for in the National Remote Work Strategy.

Re. the National Remote Work Strategy and the mandate for 20% of public sector employees for remote working by year end?  Where is this sitting right now and how soon might we see this published as presumably the private sector will also look to adapt?

The Tánaiste has confirmed that he will mandate public sector employers, colleges, and other public bodies to move to 20% home and remote working in 2021. The Department of Expenditure and Reform has been tasked with this, according to the National Remote Work Strategy, so we will have to wait and see how this will be rolled out across the public sector.  The following is an extract from DEPR’s Business Plan 2021 in that regard;

Remote Working Policy :

Develop strategy for Working From Home across the Civil Service: (CSBs to develop their own individual policies based on common core principles) Co-design guidance and toolkit for employers to support remote working in the medium term, and long term post COVID-19

 

This article is correct at 21/01/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Jennifer Cashman
Ronan Daly Jermyn

The main content of this article was provided by Jennifer Cashman. Contact telephone number is +353 21 480 2700  or email jennifer.cashman@rdj.ie

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