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Employment Law

Working remotely – the employment law and HR considerations

By Jennifer Cashman

11 December, 2019

More and more, the RDJ Employment Team is asked to advise around the development of workplace remote and flexible working policies. Often, the query relates to where an employer should start when developing such policies and what are the HR and employment law considerations that need to be addressed, to include ensuring that employees have the ability to “switch off” from work when they are working remotely so that employers can meet their working time obligations.

Introduction

The Minister for Business, Heather Humphreys, stated in August 2019 that her Department intends to explore the introduction of legislation conferring a right to “disconnect” for employees.

The Minister confirmed that a report on issues around remote and flexible working, to include the impact on the welfare of employees caused by excessive after hours emails and calls, would be finalised in the final quarter of 2019 and published shortly thereafter. This report is a deliverable of Future Jobs Ireland 2019, which places a focus on fostering participation in the labour force through flexible working solutions. In that regard, Ambition 4.2 (i) of Future Jobs Ireland committed the Department of Business, Enterprise and Innovation to: ‘undertake research on the prevalence and types of remote working arrangements within the Irish workforce, and the attitudes towards such working arrangements, as well as the factors which inhibit employers and employees from partaking in these arrangements’.

Report

The Interdepartmental Group met with key stakeholders, identified employment data in relation to flexible working and also had one-on-one consultations with industry. The Minister also said a remote working consultation forum was held in July, and the insights arising from it would be included in the final report.  The Department of Business, Enterprise and Innovation has now published its report, “Remote Work in Ireland – Future Jobs 2019” (“the Report”). Essentially, arising from the Report, the development of clear guidelines for employers and employees on remote working is now a Government priority.

Right to disconnect

In terms of a right to disconnect, the Report confirms that consultation on the topic of the Right to Disconnect with employer and employee representatives will be launched shortly by the Minister for Employment Affairs and Social Protection. The research undertaken for the Report has highlighted that, given that technology can create the impression that a worker is always available, it is particularly important that employers can ensure employees’ right to rest is respected. In that regard, the Employee Survey, which was undertaken for the Report, showed 46.7% of respondents citing switching off /avoiding overwork as the biggest challenge of working remotely. In that regard, the Report notes that disconnecting from work is an increasingly important issue for employees engaging in remote working solutions.

Findings

The Report concludes that remote working is a flexible working solution that is increasing in popularity amongst employers and employees. Whether it is working from home or from hubs, the prevalence of employees partaking in remote working arrangements is growing.  The employee survey undertaken for the Report highlighted the influencing factors for seeking remote work and two factors in particular came to the fore - flexibility and reduced commuting times. 43% of respondents to the survey identified greater flexibility as their primary motivator for working remotely. It is noted in the Report that, at the remote worker consultation forum, flexibility was highlighted as an area of importance in the context of striking a balance between work and family, particularly for women returning to the workforce. The Report does also note, however, that remote work is associated with longer working hours, work intensification and interference with personal life, all of which can lead to increased stress for workers associated with the inability to disconnect including difficulties for employee to switch off, prolonged working hours, lack of sufficient rest and remote workers be more likely to work when sick.

It is interesting to note that the Report calls out that there was a clear emphasis in the consultation forum on the importance of organisational culture when implementing remote work arrangements. Mindset and culture, which enables change, was identified as a vital tool for business in introducing remote worker policies. This includes trust between managers and employees, communication and outreach.

In terms of the influencing factors for employers, the Report notes that business can benefit from remote working arrangements by gaining access to a broader pool of talent, promoting retention, increasing productivity and improving cost effectiveness, whilst engaging in more sustainable ways of working. Of course, employee demand for flexible options such as remote working is growing, which in turn is boosting employer interest.

The Report also calls out a number of Government, independent and industry led initiatives and programmes aimed at facilitating and promoting remote work. In particular, the 2019-2020 Regional Enterprise Plans, which contain actions aimed at facilitating and promoting the uptake of remote work in hubs across a number of regions. Enterprise Ireland's new regional plan, “Powering the Regions”, also emphasises the importance of smart working and commits to the creation of co-working spaces across the regions. IDA Ireland is also pursuing opportunities to promote awareness and drive the uptake of homeworking amongst client companies, particularly in regional locations to support job creation. The Report also notes that it is possible that there will be changes in health and safety guidelines in this area in the future and the need for a review of display screen equipment is likely to be reflected in the upcoming updated EU strategic framework on health and safety at work. Skillsnet Ireland has funded the development and provision of training on managing and working in remote teams, which will be delivered by the Irish Institute of training and development in early 2020. It is noted that the Small firms Association has also published a flexible working policy and comprehensive guidance documents around flexible and remote work for employers.  This is a great place to start for any employer looking to introduce such policies into the workplace.

The Report concludes that it is arguable that the historical lack of legislation or policy on remote work has effectively left the responsibility for its uptake to employers and managers. The lack of a clear framework or awareness of the options available to support them has presented a barrier to remote work. In particular, multiple stakeholder groups identified the absence of official guidelines for employers, employees and HR professionals on the topic of remote work. The Report notes that, while it is clear that employers are under increasing demand from their staff to offer remote working solutions, many are unclear how to manage the various aspects of what this entails. Employers have concerns with encouraging remote working stemming from a lack of clarity in responsibility and ownership. This has resulted in many companies not committing to official HR implemented remote working policies, but rather preferring staff to engage with remote working on an ad hoc basis. In that regard, the Report notes that this is a point of contrast to other European countries which provide for employees to request flexible or remote working under clear structures. The Report outlines the main issues which have come through in the research, along with the right to disconnect issue as outlined above, as follows;

  1. Equality - the Report notes that employers are hesitant to introduce a formal remote working policy, arising from a fear that refusal of requests for remote working could give rise to equality issues, where it is argued that a remote working policy is not open and available to all employees. The Report notes that employers would benefit from clear guidance which facilitates the introduction of an open remote working policy including the setting out of fair and objective grounds for refusing a remote working request.
  2. Health and safety - it is noted that a lack of clarity on occupational health and safety emerged as a key influencing factor for employers considering the introduction of a formal remote working policy. The dearth of guidance on both employer responsibility in the event of work-related accidents and risk assessments for employees working at home or in a hub has resulted in a fear of liability amongst employers which makes ad worker arrangements seem like the “safer” option in responding to employee demand. The Report concludes the guidance in this area should include the topics of work-related accidents, balancing risk assessments with an employee’s privacy and clear procedures regarding bullying and workplace harassment when an employee is working from a hub or co-working space.
  3. Data protection - the Report concludes that guidance is needed on balancing data security and cyber security when engaging in remote work, particularly given GDPR and data protection legislation, which offers enhanced privacy protection rights to individuals in relation to the processing of their personal data. The Report notes that employers would benefit from a framework specifying the appropriate technical and organisational measures which need to be implemented to ensure that personal and sensitive data is kept confidential and secure for remote working. This includes data protection training for the employees engaging in remote work.
  4. Training - the Report concludes that employers would benefit greatly from clear guidance on how to address the cultural factors which surround remote work, to include trust between employees and managers when work is being undertaken remotely, maintaining visibility and managing relationships when working remotely. Training for employees working remotely and for managers in managing distributed teams is called out as a major enabler in the successful interpretation of remote working policies. The Report highlights that the recent checklist and sample remote working policy published by the SFA are important resources in this regard and would provide a useful starting point for official guidance for enterprises looking to introduce a remote working policy.

The Report goes on to conclude that, in order to make an informed policy in this area, up-to-date data should be gathered, to include a dedicated periodic exercise in gathering data on people engaging in remote work across Ireland to provide insights to the nuance of these working situations and which would also provide a more secure basis to inform policy. The need for quantitative evidence on employers engaging with remote working solutions is also highlighted as a need. In this regard, the Report calls out that it would be beneficial if data could be gathered on a regular basis on employers offering remote working solutions and the adoption of HR policies.

Conclusion

The Report is a really good first step for Ireland in terms of developing policy and guidelines around flexible and remote working, which is clearly becoming a major issue for employers, from a talent attraction and retention perspective.

For those employers seeking to develop policies now to address these issues, RDJ’s advice is to review the Report and the existing resources highlighted in the Report, in particular the SFA’s resources referred to above. The most important thing in developing any policy in this area is to provide discretion to amend the policy as Government guidance becomes available, as it is hoped it will during 2020.

It is also important to remember that under the EU Directive on Work-life Balance, which came into force on 1st August, 2019, Ireland is obliged to introduce legislation dealing with requests for flexible working on or before August 2022. We may very well follow our UK colleagues in this regard by introducing legislation which provides for an employee’s right to request flexible working arrangements, and the legislative provisions governing an employer’s obligations when such a request is received, to include statutory criteria which an employer must take into account in considering such a request.

All in all, watch this space as there are likely to be significant developments in this area over the course of the next couple of years. For now, there is no legislative provisions governing the introduction of remote/flexible working policies so employers have some level of flexibility in terms of the type of policy they introduce, to meet the needs of their own organisation.

For more information on the content of this insight please contact

Jennifer Cashman, Partner | E. jennifer.cashman@rdj.ie I T. +353 21 4802708

 

 

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