It's 2023, so when it comes to a company's obligations to its staff, Irish law is well established. But what happens when there is a fundamental change to working habits, such as employees working from home?
For many companies, COVID-era flexible working has become a new normal and hybrid arrangements where staff spend a few days a week working from home are increasingly common. So from an employer’s point of view, what changes and what stays the same?
The first thing to know is that regardless of where work is carried out, from a legal point of view, more stays the same than changes. For example, the Terms of Employment (Information) Act 1994, obliges employers to provide staff with a written statement of their terms of employment, even in a remote work setting.
Similarly, all other legal protections for workers are just as applicable, including laws against discrimination and harassment, the provision of safe working conditions and the right to privacy. However, a shift to remote working does mean adapting the interpretation and application of some of these obligations.
The most apparent is in the area of health and safety. Under the Safety, Health and Welfare at Work Act 2005, employers are required to ensure, "so far as is reasonably practicable," the safety, health, and welfare of all employees.
In an office environment this typically involves maintaining safe premises, providing safety equipment and offering any necessary training. But in a remote work context where someone might be working at a kitchen table or in a spare bedroom at home, the employer's direct control over the workspace is limited.
An employer's duty may extend to providing ergonomic equipment, offering guidelines on safe home-working practices and ensuring regular breaks. But how far this obligation goes is currently a grey area. Would it extend to requiring a home risk assessment, or funding modifications to an employee's home to ensure it's safe? The onus is likely to remain on employers to address these challenges proactively and creatively.
In addition, maintaining the right to privacy can be more complex in a remote working situation. While employers still have the right to monitor employees' performance, this should not infringe privacy rights. How to strike a balance when the line between work and home life blurs is a matter of ongoing debate.
Irish law requires employers to carry out risk assessments in order to identify and then eliminate any risks that employees may be exposed to in the workplace, and to establish the general suitability of a location for home working.
A home-office risk assessment can take the form of a short self-assessment questionnaire which the employee must fill in. Guidelines published by the Health and Safety Authority (HSA) suggests that an employer is obliged to ensure that employees are aware of any specific risks resulting from working remotely, that the work activity and the temporary workspace are suitable, that they provide suitable equipment to enable work to be done.
So if staff are working on a laptop on their sofa rather than at a desk with a suitable chair, it's worth considering that as an employer, you may be leaving yourself open.
The right to disconnect is another vital consideration. Given the potential for remote work to extend beyond traditional working hours, employers must respect workers' rights to rest periods and leisure time. This issue has recently been addressed in Ireland's Code of Practice for the Right to Disconnect, which offers guidance for employers navigating this terrain.
In the context of taxation, remote employees retain the same rights as office-based employees, but there are some complications. For instance, they may be eligible for tax relief on certain home office expenses. However, complexities arise if an employee works from home but is not resident in Ireland. In such cases, employers should seek expert advice on potential tax liabilities.
The Irish government has recognised the need for updated legislation to help guide companies with workforces that increasingly want to take advantage of hybrid working arrangements. The National Remote Work Strategy aims to provide a legal framework for remote working that will encompass the right to request remote work, duties around data security, and the health and safety obligations of employers.
So while the fundamental principles of Irish employment law continue to apply in a remote work context, the manner in which they are interpreted and applied is evolving. Until these things are fully ironed out, the key challenges for employers lies in navigating their obligations in relation to health and safety, privacy rights, and the right to disconnect in a work from home setting.
To explore more of about handling remote working in your business, including how to maintain employee morale in a hybrid workforce, visit our VHub Knowledge Centre. You can also speak to one of our V-Hub digital advisors.
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