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

Scott: Good morning, everybody. Welcome to this webinar. Today, it's a follow-on from the Annual Review of Employment Law in November. But many things have been happening and we're here with Jennifer Cashman, as you can see, the Head of Employment at Ronan Daly Jermyn. Jennifer leads the Annual Review discussion on the overall review that we have. But there have been a couple of subjects that have come up since, and we're going to look at those today.

So thank you for joining us. This is a record-breaking webinar. You've broken the internet, Jennifer. We've had more registered for this one than we've ever had.

Jennifer: Amazing what people will do to get a break from home-schooling, Scott.

Scott: They might do anything. So just before we get into what we're going to discuss today, we do have a Wellbeing eLearning Toolkit, as you can see there, with mental health and wellbeing, coping with fatigue, managing stress, building resilience. We all need that kind of thing there. And if you want to hear from Debbie, if you could, type yes into the question box. You'll see on the right-hand side of your screen there, there's a little thing that says "Questions".

And if you want to send questions in today to Jennifer, send them in and I'll read them out anonymously. But obviously, with the yes ones, we'll pass those on to Debbie and she will be in touch about the various things that you can find out about eLearning.

Now, we're going to deal with a couple of subjects today, Jennifer, for those who are listening today. And these are things that actually came up and have developed since November. That shows you how quickly things move in employment law today.

We're going to look at the update on remote working. So there's a code of practice from the WRC that's coming on the right to disconnect from work, and that consultation closes tomorrow. So, if anyone wants to be on a submission, they can do that tomorrow.

We've also had Leo Varadkar bringing out the national strategy on remote working, and we'll discuss that and flexible working issues as well.

The big issue at the moment is vaccinations, both here in the Republic of Ireland and across the water in the UK. Can employers demand employees take vaccinations on the COVID-19 virus and other issues around that. So we'll be taking those questions.

And if we have time, we'll look at another development that's happened since the Annual Review, which is the Unified Code of Practice, which came into operation, I think, on the 23rd of December. And that's the HSA and the WRC unified code on bullying.

So, if you've got your questions, if you send them in to me, we'll read them out. But first of all, Jennifer, welcome to the webinar. Messages are still coming through.

Jennifer: Thank you, Scott. Morning, everybody.

Scott: It's been a fairly febrile time that we've been. I don't have a camera on. So, if you're wondering where the voice is coming from, it's Scott Alexander. I'm in deepest, darkest Armagh. My Wi-Fi is not the best. I'm getting a new suite delivered, I'm told, in five minutes, so I might have to disappear. But I am supported in the background by Rolanda Markey from the L&D team at Legal-Island. So one of us will be here at any rate over the next 45 minutes. If we have time, we may extend it a little, but we're due to finish around quarter to 12.

Code of Practice on the Right to Disconnect

Update April 2021 – the Code of Practice has now been published and is available here.

So, Jennifer, an update on remote working. We're going to look at that. Let's deal with the code of practice first. The WRC has been given the job of drafting one. There's a consultation out. It closes tomorrow. Tell us a bit about the background and why it's there and the right to disconnect.

Jennifer: Of course. Thanks, Scott. Hi, everybody. So I suppose for those of you who were at the Annual Review this year in November, and indeed actually at the Annual review the previous year, in 2019, we were talking actually about the right to disconnect ever before COVID came upon us.

Minister Heather Humphreys back in 2019 had indicated that she was beginning to look with a sort of an interdepartmental group at this whole issue of remote working because a number of other European countries had started to legislate for this issue.

This is the concept, I suppose, that employees nowadays . . . many of them feel like they're always on, because we all have smartphones. Most of us are hooked up to our work system through our smartphone. And so you don't necessarily get away from the emails just because you turn off your laptop in the evening because the emails are still coming through to your phone.

So this was becoming an issue anyway just in terms of the development of technology over the last number of years and the development of the ways that we've all been working. So this was being looked at by the government in terms of what we should do as a country around the issue of the right to disconnect. There was some talk about maybe we'd legislate for it like other countries did. France and Spain, for example, have legislated for the right to disconnect.

And then, ultimately, obviously, all of this was thrown into far more focus over the course of the last 12 months when we've had remote working in a crisis situation and emergency situation, and people finding it much more difficult to disconnect from work while they're working at home.

So what's ultimately happened is that we've decided as a country that we're not going to legislate for it, which I think is a good thing. Instead, what's going to happen is that the Workplace Relations Commission has been tasked with producing a code of practice on remote working.

Now, codes of practice aren't legislations, so they don't have statutory effect as such. But they are admissible as evidence in proceedings. So they are admissible in evidence, for example, in a WRC claim against an employer. They are of what we call persuasive effect. In other words, if an employer isn't abiding by the provisions of a code of practice, then that can obviously come against them in any proceedings that they are defending before the Workplace Relations Commission, the Labour Court, or a court from an employment law perspective.

So, for example, another area that I speak about a lot at the Annual Reviews is the whole area of retirement ages. We have WRC code of practice on longer working, which is the retirement code of practice effectively. It's the code that sets out how employers should deal with retirement and also requests to work on beyond the organisation's mandatory retirement age.

So, if you look at the cases that have come before the WRC in the last couple of years since that code of practice was introduced, if you look at the cases, the adjudicators rely very heavily on that code of practice, and they look at that code of practice to see if the employer before them indicates that they have dealt with the matter in accordance with the code of practice.

One imagines that the right to disconnect code of practice will be the same. It will be admissible in evidence before the WRC or the Labour Court or a court, and it would be of persuasive effect insofar as, "Well, has the employer abided by this code of practice?"

Now, I suppose the real question is what's going to be in the code of practice. And as you rightly said, Scott, the Workplace Relations Commission has opened a public consultation on the right to disconnect, and they've invited submissions. So, if you go on to the WRC website, they have invited submissions there. There's an email address that you can put in your submissions.

They haven't been prescriptive about what needs to be addressed in those submissions. They've just said they're inviting submissions. And they've also indicated that they may engage further with individuals or bodies who put in submissions to tease out the issues further, and that they may also liaise with other stakeholders. One imagines that they'll liaise with the likes of maybe Ibec and maybe CIPD, those types of bodies.

So, in terms of what's going to be in it, we don't know as things currently stand. Leo Varadkar has made some comments around the proposed code of practice, and he has thankfully acknowledged that this is a tricky area. It's quite nuanced in terms of how you . . . it's not a one-size-fits-all approach. You can't say, "Everybody in the country can switch off at half five and doesn't have to send or receive emails after that time".

Obviously, we've got a lot of multinational companies working in Ireland, and they work across different time zones and they are dealing and liaising with their colleagues in different time zones. So there will be lots of meetings that aren't necessarily within what might otherwise be the traditional sort of core hours of work.

So it is quite nuanced, and Leo Varadkar has thankfully acknowledged that and said that this code of practice can't be overly prescriptive in that regard because it will depend from employer to employer.

What we're hoping for is a document that provides some level of guidance for organisations, but leaves a lot of flexibility and discretion to organisations in terms of how they apply the code of practice in their own organisations, taking into account the fact that, as I say, it is quite a nuanced area.

So I suppose the real big development is that we now know we're not going to have legislation in relation to the right to disconnect. It is going to be a code of practice. The consultation finishes tomorrow at 5:00. We are expecting the code of practice during Quarter 1 of this year.

Whether that happens or not, I suppose it very much depends on how many consultation documents and submissions are received by the WRC and maybe what issues are kicked up during their review of those submissions as to whether or not it's achievable to release the code of practice before the end of Quarter 1.

But certainly, it's something that will be coming down the track at some point during the coming months, so definitely one to keep an eye on from an employer's perspective.

Scott: Thank you very much, Jennifer. If you've just joined us, folks, you're listening to Jennifer Cashman from RDJ. And she's talking about the code of practice or the soon-to-be code of practice from the WRC about the right to disconnect.

Now, we're getting hundreds of messages here, Jennifer, because we've reached our limit on the webinar. And if you're one of those people who've managed to sneak in and you're having some difficulties, if you go out, there's a very good chance you won't get back in. But fear not, because we shall send a link to the recording of the webinar to everybody afterwards who's registered.

We've had a number of questions coming in. I'm going to try and deal with some of those here. One of them says, Jennifer, "Will . . ." Oops, it just disappeared. There are so many questions come in they go before I can have a look at them.

One of them here is,

"Will an employee need to put in writing that they would like to disconnect to stop their colleagues and managers connecting them?"

I suppose we don't know at the moment, but that might be the kind of thing where it's driven by the employees who want to disconnect, or do you think it's going to be more because it's part of the Organisation of Working Time Act, if you like, in the background that it's going to be an employer has responsibility to push employees and say, "You must disconnect"? Is it going to be something along those lines? What do you think?

Jennifer: I think so, Scott. And again, very much crystal ball gazing to a certain extent, but I suppose this all comes back to our Organisation of Working Time legislation and the statutory obligations that are already on employers around individuals' working hours and making sure that individuals are not working, for example, more than the permitted 48 hours per week, with some obvious exceptions to that although limited enough. In general, it's 48 hours a week over a reference period.

So there's that maximum working hour obligation, statutory obligation. There is also the statutory obligation to make sure that employees take breaks during their working day, and, of course, the biggest obligation that employers record employees' working hours and record employees taking breaks.

Now, this has come into very sharp focus over the course of the last 12 months, where employers that traditionally haven't had remote working have had to put in place remote working in this crisis situation that we have found ourselves in as a result of COVID. And the obligations haven't changed. So the obligations on employers around hours of work and records to be maintained around working hours, none of those obligations have changed or been eased or suspended in any way. An employer's obligations under the Organisation of Working Time Act still apply.

And if we look back to, I suppose, one of the most publicised cases around this whole issue of after-hours email is the Kepak case. That was two years ago we had the Kepak case, where effectively an employee said that she was forced to work long hours, and that her manager was sending her emails at all hours of the day and night, and that she felt that she was under pressure to respond to those emails, and that the employer was well aware that those emails were being sent.

There was criticism in the decision of the employer being on notice of the fact that there was email traffic late at night and that that clearly should have been a signal to the employer that something was wrong in terms of the amount of traffic.

So that case very much brought into focus that employers have an obligation and a responsibility. You can't just turn a blind eye and keep your fingers crossed and hope for the best. You do actually have to proactively manage this to see, "How are people getting on? How are they working? Is Jennifer Cashman sending an awful lot of emails around 10:00 or 11:00 at night? If so, why is that happening? Is, in turn, Jennifer Cashman managing a team of people who now feel that they need to respond to those emails because their manager is sending them emails late at night, and they now may in turn feel under pressure to respond to those emails? What's happening from workload perspective that that is happening?"

That case very much brought those obligations into focus, Scott, around an employer, I suppose, being proactive in terms of taking action if it becomes obvious that somebody is under pressure or somebody is working very long hours or working very late into the night.

And I suppose all of that brought this whole right to disconnect into very sharp focus because of the way that we all work now. I'm not talking about COVID and I'm not talking about the way we've all been working in the last 12 months because of COVID. I'm talking about even pre that, as I said earlier, in terms of the way we work with our technology, and the fact that we are an always-on working generation. We are always switched on. Somebody can always get you on your mobile phone or whatever.

That is a real concern from an employment perspective, because people are beginning to report now that they have mental health issues, that they are feeling very stressed, and all of those liabilities can ultimately come back on an employer.

So an employer turning a blind eye to people working long hours and sending emails late into the night, that issue wasn't going to work anyway. And that's become even, I suppose, into more sharp focus as a result of COVID, but it was there pre-COVID.

So I don't think it will necessarily . . . I mean, certainly where an employer has an employee coming to them to say, "Look, I am finding it very difficult to disconnect. I am finding it very difficult to switch off. It is impacting on my family life", an employer needs to respond to that. You just can't ignore that because that could ultimately lead to liability down the line in terms of that particular employee and their health.

So, from that perspective, we assume that the code of practice will deal with employers' obligations in this area.

And as I say, all of the obligations that stand under the Organisation of Working Time Act, there is no indication that that legislation is going to be amended in any way. I suppose that in and of itself is a bit of a concern, because that legislation arguably isn't fit for purpose given the way things have changed in the working world.

I suppose it's the old scenario of legislation not keeping pace with workplace developments and then legislation maybe not being fit for purpose in terms of the amount of workplace developments we've had and the way people work. That's going to come into even sharper focus in terms of this right to remote working, which we're going to talk about in a moment.

Scott: Okay. Thanks very much, Jennifer. We had a question there, but I think you kind of answered that here. It says,

"If you don't reply to a text or an email after your working hours, would it ever lead to disciplinary action?"

And it's not so much that you're talking about, but it's the culture, if you like, the long hours culture.

The Kepak case was a working time case, but if it continues, the argument is it then becomes an industrial injury case. Presumably, people are working from home, they've got the pressure, they're having difficulty to cope, and the employer has responsibilities. As has been said at the Annual Review, and we covered it quite a lot, those liabilities under the old legislation didn't disappear when people started working from home.

Jennifer: No. It's a health and safety issue as well as an Organisation of Working Time issue.

Scott: So, when you add those things together, there's potential to have a whole stack of cases just building up and building up if employers don't take some kind of remedial action and don't do risk assessments in what is now a new workplace for most workers.

Jennifer: You're right, Scott. I think that culture piece is really important, because a lot of the time you'll have managers, as I said earlier, that are very happy to be working at 10:00 at night or catching up on their emails at 10:00 at night. Fine to draft an email to your team members at 10:00 at night, but maybe not send it. I suppose managers maybe can do that.

Look, I've done it myself. I've sent an email out late at night without necessarily thinking about the impact that that has on the person that you're sending the email to. You might think, "Well, I'll just send that to them. They can look at it tomorrow and they can deal with it tomorrow". But the person receiving it may think, "Oh my god, my manager just sent me an email. I should really respond to this. I need to respond to this".

So it's a health and safety issue, it's an Organisation of Working Time issue from a liability perspective, and then it's a culture issue and a training issue from an organisational perspective. Employers really do need to look at this when the code of practice comes out to see how it impacts on their own organisation.

It's a really good opportunity to take that sort of culture piece and decide how you can address that in your organisation and what is the culture that you're trying to achieve in the organisation. And this kind of laissez-faire attitude of, "Actually, they're all grand and they'll all be fine and they'll all get on with it", not good enough anymore. Employees needed to be more proactive than that.

Scott: There's a comment in here, funnily enough, about just showing you how the legislation doesn't keep up to date with things here. "What about WhatsApp group and informal groups that go on after work and those kinds of things?" I think one of the difficulties with the code or pulling it together for the WRC is because people are . . . You're home-schooling, so maybe you're working at the weekends and you're doing . . .

So the right to disconnect is right to disconnect at the time, presumably, that either suits the employee or is part of their contract. But it's not going to be easy to put that down in specific terms, I think, for the WRC. But nonetheless, that doesn't get rid of any of the obligations that the employers would have on dealing with that.

Jennifer: Yeah, I did take some comfort from what Leo Varadkar said because it did strike me as if it's not going to be overly prescriptive, and there is a recognition that for different industries and different types of employers, there are different issues which needs to be taken into account. So I did take some comfort that it's not going to be overly prescriptive, but we will have to wait and see.

Scott: We have a couple of comments coming in here. Just to let you know, there are no slides. This is the slide accompanying this. But we are recording it and you can watch all this back. So, if you have any sound difficulties or anything like that or if you want to check any other questions, then you can watch that. That'll be available. I think this afternoon we'll be getting it transcribed, so you'll be able to search for different terms. That should be in the next week or two.

National Strategy on Remote Working

Let's move on to the next section, because it's very much connected there. This is this new national strategy on remote working and I suppose the interface that we have, Jennifer, with flexible working, which presumably one of them is a subset of the other. So, again, a little bit of the background and one or two of the concerns that you might have and things that people may have to take into account.

Jennifer: Sure. Thanks, Scott. Again, I spoke about this at the Annual Review, both in 2019 and 2020. So there's a good bit of background in both of the papers attached to the Annual Reviews for those years.

Again, the whole issue of remote work was being looked at by the government pre-COVID. So around the same time that Heather Humphreys had spoken about the right to disconnect, the government was starting to look at this concept that more and more employees were looking to work remotely. They were looking at hubs, these remote-working hubs that we have dotted around the country that some employers and employees were making use of those hubs, and what more use could be made of them and how would it look in terms of housing and decentralisation and all of that. So this was something that was being looked at anyway.

We had a government report, which I reference in the Annual Review paper from 2020. In December 2019, we had a report from the government around their study into the whole concept of remote work and what were the concerns. What were the some of the benefits of remote work? What were some of the concerns both from employees and employers?

Really, the conclusion of that report was that one of the things that was missing was guidance and framework around remote working, that while employers were open to the notion of embracing the concept of remote work at that stage, which is the end of 2019, they had some concerns around health and safety. They had some concerns around data protection. They had some concerns around working time and the right to disconnect, and some concerns about equality issues. We can allow some people to remote work but not others, and how will that interplay with our equality obligations.

So there were some concerns noted on the part of employers, and the government committed to gathering further data around remote work and developing sort of guidance and framework around remote work. That was December 2019.

And then, of course, COVID happened in March. We were all sent home. And employers who maybe hadn't at that stage been moving towards remote work had to very quickly mobilise their staff to work from home. It accelerated to the whole process. Of course, it's continued, and little did we think last March that we'd still be sitting here in January of the following year not knowing when we might get back into our workplaces.

I suppose COVID and what happened in the last year with everybody pretty much . . . and I fully appreciate that there are people listening to this webinar that can't work remotely and that need to go to work. Legal services actually are one of the essential services. We also have to come into the office on a regular basis to carry out some of our work. So I fully appreciate that not everybody can work from home, and I do want to stress that. But a lot of organisations have sent certain functions home and allowed them to work remotely as requested to do so and directed to do so by the government.

Leo Varadkar had promised towards the end of 2020 that he would bring out a strategy document around remote work. And he did so on the 15th of January last. He produced the Making Remote Work, as it's called. It's the National Remote Work Strategy document.

This is a document that sets out the government's ambitions, aspirations, and plans around remote working. And I suppose if I could talk first about the plan, because this is, from an employer's perspective, really important.

The plan is that the government intends to legislate to allow employees the right to request remote working, and that legislation, according to the strategy document, will be published in Quarter 3 of 2021.

So I know there are lots of employers because I'm talking to lots of you about it who are looking at developing policies and procedures around remote working into the longer term, so post-COVID. But what I would say is that any policies and procedures that are implemented, you will have to caveat them as you do with every policy anyway, but not on the assumption that there might be legislation down the road, but in the knowledge that there will be legislation down the road. So there may be a requirement to amend policies and procedures to take account of that legislation, which, as I say, is due later this year. So it's relatively imminent.

There's going to be legislation giving employees the right to request remote working. Not the right to get it, remember, but the right to request it.

Secondly, the government is going to . . . Leo Varadkar said he is going to mandate that 20% of the public sector . . . so he wants the public sector to sort of lead the charge in this area. He said he's going to mandate that 20% of the public sector will be allowed to participate in remote work.

In the strategy document, the indication is that DPER has been given the responsibility around that and that that is expected to be implemented in Quarter 4 of 2021. So, again, relatively imminent. It's going to be this year.

He's also said in the strategy document that there will be a review from a tax and budgetary perspective in terms of the whole allowances and taxation around remote work and costs associated with remote work.

And it's been indicated that that may result in some budgetary measures in our next budget, which would be budget 2022, which would be issued, obviously, later this year. So, again, relatively imminent in respect to that.

Then there's going to be, I suppose, a whole investment by the government in the infrastructure around remote work, and this is where these hubs come back into play. There's going to be an investment in the infrastructure around remote work.

So that's what's expected to happen according to the strategy document. That's the commitment the government has given. There are going to be massive changes around this from an organisation and an employer perspective, so it's really one to watch.

And we will, of course, come back to you once we have more clarity on the code of practice and what that says. We will, of course, come back to you and tell you what that says. We will do the same in terms of the remote work legislation. We will talk to you more about that, and hopefully, we might have that in time for the Legal-Island Annual Review in November. That would certainly be the hope.

You mentioned concerns that I might have. I know these concerns are shared by a number of organisations. One of the main concerns I have is the fact that the government is so focussed on remote work.

As I referenced in the Annual Reviews that I mentioned last year and the year before, there is the EU Directive on Work-Life Balance, which was introduced in 2019. And that obliges member states to introduce legislation giving employees the right to request flexible working. Now, not remote working, but flexible working. And that legislation must be introduced by Ireland on or before August 2022.

Now, it would seem from my reading of the strategy document that has been released by the government that we're going to have legislation on the right to request remote working. But that arguably doesn't comply with our obligation under this EU directive on work-life balance to introduce legislation around flexible working. So the question is "Are we then going to have more legislation around the right to request flexible working?" which doesn't seem to make a huge amount of sense to me.

Plus, and I've said this constantly, it's a constant refrain of mine, that remote and flexible working are used interchangeably and they're not interchangeable. Remote working is an aspect of flexible working.

So flexible working can be a number of things. It can be different start times and finish times. It can be working part time. It can be different shift patterns. It can be remote work, but remote work is one aspect of a broader flexible work programme.

The government has very much now honed in on remote work, and for many employers, and indeed many employees, it's not all about just remote work. It's about different patterns or wanting different start or finishing times or whatever.

One of the things that a lot of people say that COVID has taught them is that if they could go to work earlier or maybe later and avoid commuting at the peak hours, wouldn't that be great for the whole country if we could sort of stagger start and finish times? But that doesn't mean that everybody wants to work from home all of the time or can work from home all of the time.

So that will be one of the concerns I have, and that's one to watch, I think, and one we'll need further clarification from the government on. Are we going to have more legislation then with the right to request flexible work?

In the UK, what we have is legislation giving employees the right to request flexible working. It's not a right to get it. It's a right to request it. And then there is an exhaustive list of criteria that an employer must take into account in considering that request and either granting it or refusing it.

So I assume that our legislation, the legislation that's been promised around the right to request remote work, will be something similar. So it won't be granting any sort of obligation on employers to grant remote work, but it will set out the criteria that must be taken into account in terms of considering a request for remote work.

As I say, there is going to be legislation around this, so this is something . . . and I know that organisations have started to look at this anyway into the longer term. But there are a host of concerns around remote working. There are some huge advantages. Absolutely. But there are lots of organisations now that are finding that there are disadvantages, and a lot of concern.

I had one employer yesterday, for example, discussing with me, "Well, this whole idea of hubs, we don't want our people working from hubs because we have a whole concern around confidentiality, data protection. And we would have a concern that if we have people working from hubs, that heightens that risk".

So there are concerns. It's concerns around health and safety. What are my obligations as an employee around health and safety? None of the obligations, the pre-existing obligations on employers under health and safety legislation, have changed as a result of any of this.

Now, it is interesting that in the strategy document, the government acknowledges that at EU level, there is a review of health and safety legislation going on because, again, of the changes in the ways people are working now over the last number of years, and particularly as a result of COVID with much more remote work than was otherwise the situation. So it may be that ultimately health and safety legislation is amended down the road as well.

But as things currently stand, employers have all of the same obligations to make sure their employees have a safe place of work, safe equipment to work on, that all the ergonomics are in order. And that applies whether an employee is working in the office or working remotely from home or somewhere else.

So there are quite significant health and safety obligations on employers, and that's a concern for employers as well in terms of remote work. But of course, there are lots of positives, as I say, to remote work. Certainly, they've been embraced by most employers now over the course of the last 12 months who've realised that there are huge advantages, and that people are happy to do it for maybe some part of the week at least.

So we imagine that remote work is going to become more of a permanent feature of our workforce as we go forward. And as I say, we will definitely have legislation around this later this year.

Scott: Yeah. Thank you very much, Jennifer. If you've just joined us, it's Jennifer Cashman from RDJ, and she's talking about the national strategy for remote working at the moment.

I suppose it's set out in the document that it's trying to make it a permanent right, if you like. And lots of people are looking at some kind of hybrid working, going into the office sometimes. A lot of organisations miss the creativity you get when you get a group of people in one room. But at the moment, that's impossible.

There are a few comments just coming there about the same thing as you . . . about the GDPR issues and worry about confidentiality. There are others saying,

"What kind of criteria would you weigh up? Would you be forced if you can't allow remote working to let somebody go to a hub?"

It may well be as part of that document . . . I think what the government is looking at there is that there are some places, like me, that don't have great Wi-Fi, and therefore, providing a hub at least that's relatively close to maybe the outlying areas will allow them to work remotely without them having to work from home. And it would be a relatively safe environment. That might be what that's for as opposed to you having to provide a hub. I can't imagine that would be the case.

Jennifer: No, I don't think so, Scott. And I don't think it's going to be you have to provide a hub or you have to allow people to work from a hub. I don't think they'll go that far. I would certainly hope not. I don't think they'll go that far. I suppose the government is giving that option.

The tricky bit that I see for employers is that many people may have been working from hubs over the course of the last 12 months while they've been working remotely. So, as you rightly say, if they're having Wi-Fi issues and they're concerned about that, they may have a local hub that they've been able to work from.

The employer wouldn't necessarily have known that over the course of the last 12 months, and it may now only come up,

"Well, look, I've been able to work from this hub for the last 12 months and it's been fine, so why can't I continue?"

That's going to be quite tricky, I think, for employers in terms of trying to roll back on things that have been happening anyway.

Now, they've been happening in the context of a global pandemic and in the context of a crisis. That doesn't mean that an employer has to model its business on that going forward. Thankfully, we don't generally model our businesses on global pandemics.

But I suppose it will kick up some issues. One of the issues, and I know we discussed this at the Annual Review, is the whole issue of people working abroad and people who've gone maybe to their home country to work for the duration of the pandemic. And again, a lot of employers are being asked, "Well, look, I've been able to work from Spain for the last number of months, so why can't I continue to do that?"

Or other employees saying,

"Well, I'd like to go home to Spain for the summer now, and you've had other people working there during the pandemic and it's been fine and there's been no interruption to normal work. So I'd like to go home now and spend my summer in Spain on the beach. Why can't you facilitate that?"

So there's going to be lots of those issues, I think, for employers when we're out the other side of COVID as a result of arrangements that have been happening during COVID that maybe employers aren't necessarily aware of. I do think that we have an interesting number of months ahead from that perspective.

Scott: Yeah. It's quite complex with the whole situation, but you have to do it. We got away with it because it was the only way to continue operating. But long-term, it's simply not a remedy. I remember seeing one picture, and I think it was on BBC website, of a guy in London and his desk was an ironing board. That's not sustainable. Long term, it's going to . . .

Jennifer: Possibly he didn't know what it should be used for, Scott.

Scott: Hmm?

Jennifer: Maybe he didn't know what the ironing board should be used for.

Scott: That's the kind of sexist joke that you can get away with that I couldn't possibly comment on there, Jennifer.

Mandating Covid-19 Vaccinations

So loads of questions coming in. We'll try and get back to some of them. But before we finish, there is a big issue and it's coming out now as the vaccine is being rolled out. It's all around this area of employers almost demanding or encouraging or doing a lot more than encouraging . . . there have been stories in the press, online, and such like of employers saying, "No jab, no job".

There are others that are turning around . . . I saw a survey of Saga, the people who do cruises for older people, and 99% of their members when they did the survey said they would prefer that everybody on a cruise had received a vaccine. So it's being driven commercially, being driven by employers saying, "Hold on a second. Isn't it great if we can say all the plumbers that work for here have had the vaccine when they go into your home?"

You can see there are pressures, but there are issues with it. There are discrimination issues. There are constitutional issues. So maybe set out some of those, because I know a lot of people would say, "I don't want to work with somebody who hasn't had the vaccine". That kind of thing we were chatting about before we went live. Give us a background on that, and the kind of concerns that you might have, and maybe a way forward.

Jennifer: In five minutes. So, basically, the short answer . . . because the question, I suppose, that comes up a lot is

"Can we force our employees to take the vaccine?"

And the answer is probably not if you're not in a sector that would objectively justify you insisting on employees taking the jab.

So, for example, if you are in a care home setting or some other medical healthcare-type setting, then you may very well be justified, because there's a constitutional right to the right of bodily integrity, which means that people can use that and say, "Well, I'm not going to take a vaccine". But that has to be balanced against the common good. There may be situations and settings where the common good would outweigh the right to bodily integrity, and therefore, it would be acceptable to say, "We must have staff who are vaccinated".

But in office environments and other environments that aren't in those types of healthcare settings and those types of settings that would justify it, the answer is you can't force people to take the vaccine.

It doesn't appear that the government is going to mandate the vaccine. That may change as everything has changed, hasn't it, as we've gone on with COVID. So that may change. But as things currently stand, it doesn't appear that the government is going to go that far.

From an employer's perspective, unless, as I say, you're in one of those settings where you might be able to do it, you won't be able to mandate that your employees have to take the vaccine.

Now, you can encourage them to take the vaccine and you can make information and education available to them, and I think this is really important. Reliable information around the vaccine, and the different vaccines, because obviously there's more than one. But in terms of forcing people to take the vaccine . . .

Also, there's a data protection side to this because as things currently stand, as we understand it, it would be our GPs that would be administering the vaccine and making the appointments for us to come and get the vaccine. So my employer isn't necessarily entitled to know that I have received the vaccine because that's medical information that is personal to me from a data protection perspective.

And again, unless the employer can justify needing that information legitimately for the workplace . . . Again, possibly in a healthcare setting, you could legitimately justify that, but not in another office-type environment, like the environment that I work in.

So we won't be able to mandate as things currently stand that our employees take the vaccine. We'll just be able to encourage them.

We have the flu vaccine and a lot of employers will have GPs to come into the workplace to administer the vaccine. Maybe we'll be able to do that depending on supply obviously and depending on how the vaccine programme is rolled out.

And the types of issues that can arise for employers where an employer decides, "Look, either which way, I would be more comfortable if all of my people were vaccinated. I'm going to mandate that they must be vaccinated to return to the workplace". The difficulty is you could be exposed to employment equality issues. There may be a reason why . . . somebody has an underlying medical condition, for example, and they're advised that they can't or shouldn't take the vaccine. Somebody who maybe has religious beliefs, that means that they won't take the vaccine from that perspective.

So it can give rise to employment equality issues in terms of a person's reasons for not taking the vaccine. It may not just be because they've decided not to take the vaccine. There may be a good reason underlying it. From that perspective, there would be a concern that an employer would have an employment equality liability in terms of forcing the vaccine.

Then, of course, a lot of employers ask, "Well, can I say that they can't come to the workplace if they're not going to take the vaccine? I only want people who are vaccinated in the workplace". The same issues arise, really, in terms of the potential exposure from an employment equality perspective and a data protection perspective. So, again, the same issues will arise there for employers in terms of excluding employees from the workplace when we're past that stage.

Scott: Could I maybe come in there, because a few of those nuanced questions have been coming in there. It's not as extreme to say to somebody, "Look, at the moment, we don't know whether you're carrying the virus or not, so we don't want you in the workplace. We're not going to sack you". That's not as extreme as the guy from Pimlico Plumbers was saying . . .

Jennifer: No jab, no job.

Scott: . . . no jab, no job.

Similarly, and it's one of the questions coming in here, can you say, "Look, you have to wear a mask. You don't have the vaccine. You're not going to tell us you got the vaccine and we don't know if you got the vaccine. If you don't admit it, if you don't give us the information, wear a mask", and you'll be uncomfortable, or, "We're not inviting you into group meetings"?

A further one, which is . . . For instance, in Legal-Island, we have a couple of people who are shielding, if you like, or cocooning because of underlying health issues. They won't probably have a chance of going back to the workplace, I'm assuming, if it's unsafe, and it won't be safe until you know everybody has had the vaccine.

So is there an issue there where you're saying, "Look, because we have people who are at risk, then you're not allowed to come in because you're putting those at risk unless you get the vaccine"? Could that be developed? Is that going too far?

Jennifer: I think it is, Scott, potentially. What employers will have to do as long . . . look, we all know that the vaccine isn't a silver bullet either in terms of COVID and that we will probably be living with social distancing and all of the other hand washing and hand sanitisation stations and all of that for some considerable time to come. That seems to be the general view.

Certainly, Mike Ryan of WHO has said that the vaccine is not the silver bullet because 80% of the world's population will need to be vaccinated before we can go back to normal, as it's affectionately called now.

So, no, but I suppose employers can do other things. They can introduce testing, for example, in the workplace. They can say, "Again, from a health and safety perspective, because we've got an obligation to make sure that everybody is safe and we've got an obligation to satisfy everybody that we're running a safe workplace, we're going to introduce testing in the workplace on a regular basis".

I know a lot of workplaces that have testing now on a regular basis for COVID. So introduce maybe testing, masks, hand sanitisation, social distancing, reduced workforce so we have teams X and Y in our organisation in terms of you can only go into the office on certain days and you can't go in on other days for capacity reasons.

So all of those measures are the measures. All of the measures that employers have been living with for the last number of months really should continue. And the vaccination isn't the silver bullet in relation to all of those measures anyway. So, from the health and safety perspective . . .

If somebody has been working remotely and can be facilitated and continuing to work remotely and doesn't feel safe coming into the workplace, then, again, that will need to be looked at from a workplace perspective as to whether or not that could be facilitated.

And as I've said from the get-go in relation to COVID, you'll be involving your health and safety experts and you'll be involving your occupational medical experts in terms of what is appropriate in your particular workplace. So none of that changes just because we have a vaccine.

I think a lot of the focus will have to come off the vaccine being the silver bullet from a workplace perspective. Instead, we're going to be looking at employers putting in place the measures and maybe refreshing their health and safety measures that they already have in place in workplaces with a view to assuring people that it is safe to come back when and where it's appropriate for them to come back.

Bullying in the Workplace

Scott: Okay. Thank you very much, Jennifer. You're listening to Jennifer Cashman from RDJ. We're kind of out of time, but just before we go, because people have been hanging on . . . and there are a number of questions there . . . but there is this unified code on workplace bullying. Is there anything that's big and different about it? I know it sets out all the definitions and say it's not harassment and all that kind of stuff, which was there before. Is there anything that really people should not?

Jennifer: A couple of things. It's a Unified Code of Practice. People will remember we had more than one code of practice on bullying in the workplace. We had the Health and Safety Code of Practice and we had what was the Labour Relations Commission before it became the Workplace Relations Commission. So we had two separate codes of practice, which wasn't really great from an employer's perspective.

Now we have a Unified Code of Practice, which is great. The HSA and the WRC have come together and produced this Unified Code of Practice. So it's really positive development from that perspective.

There are a couple of changes. The definition of bullying hasn't changed. I suppose that's the key thing. The definition of bullying hasn't changed, this idea that it's repeated inappropriate behaviour.

The code of practice helpfully sets out quite specific examples, and it's not a non-exhaustive list, but quite specific examples of what's not bullying, so things like performance management and difficult conversations in the workplace, things that sometimes people interpret as being bullying or will call bullying. This code is really calling this out as not being bullying, which is helpful, I think, particularly from a sort of a cultural training perspective around the new code of practice. It's a real opportunity to get in there and sort of train people and talk to them about what's not considered to be bullying.

I suppose one of the biggest changes is there is a lot more emphasis on resolving bullying complaints informally, either through the use of mediation or there is then a two-stage informal process. Before, where we kind of had a one-stage informal process, now there's much more focus on the employer seeking to resolve a bullying issue through this two-stage informal process.

So that's probably the biggest change for employers who have existing policies and procedures in place, is that they will need to amend and update their policies to take account of this new two-step informal process. That would be one of the biggest changes.

The other thing is . . . you're right, Scott. It only deals with bullying. Harassment is a legislative issue under the employment equality legislation. Harassment and sexual harassment are dealt with as a legislative issue. They're not dealt with or not addressed in the code of practice. But what we do know is that it is still appropriate for employers to include both bullying, harassment, and sexual harassment in the one policy document.

Most employers have dignity at work policies, which cover bullying, harassment, and sexual harassment, and it's still okay to have one document that deals with all of them. But it will need to be updated to take into account at this new unified code of practice, and in particular, this sort of enhancement of the informal resolution of complaints, which is always a better way to resolve complaints.

Any employer on this webinar who's been involved in a formal investigation into allegations of bullying and/or harassment knows that it's to be avoided at all costs. So, if it can be resolved through mediation or an informal process, that is always more appropriate and more beneficial from an employer's perspective.

Scott: Thank you very much to Jennifer. Just had a question in there of when it's out. It's applicable now. It's online. It's available.

Jennifer: Yeah, from the 2nd of December actually, so it's applicable now. You access it online on the WRC website. You can get the code of practice there and it is applicable as and from the end of December. So employers really do need to have a look at it and have a look at their existing policies and just see where they need to make the tweaks. Or if they get a bullying complaint in before they have an opportunity to amend the written document, just make sure that you check the code in terms of how you're addressing the complaint to make sure that you're abiding by the terms of the code of practice.

Scott: Okay. Thank you very much to Jennifer Cashman from RDJ. We'll send links to that code and other things in the follow-up email. Thank you very much, Jennifer, for all that. Thank you to everybody . . .

Jennifer: Thank you, Scott.

Scott: . . . for listening. We'll see if we can pull those questions together into some kind of Q&A document and do something useful for them.

Jennifer: Absolutely.

Scott: Our next webinar . . . oh, sorry, just saw the slide there about the Wellbeing Toolkit, the eLearning Toolkit. We will send you information there. And anyone that's asked to speak to Debbie directly, we'll get in touch with you.

Thank you to everybody. Our next webinar is coming up at the beginning of February. And as you can see there, it's with Caroline McEnery. Hopefully, we'll see you then, and we'll see you at one of our events, which are coming up. We're back to events. This is how quickly things happen, Jennifer. We're back to online events next month. Thanks, everybody. See you again. Bye-bye.

Jennifer: Thanks, Scott. Thanks, everyone.

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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