The Legal Perspective on Remote Work and Employers’ Obligations

Today on our quest to discover how businesses in Ireland are coping with remote work, we’re talking to Catherine O’Flynn. Catherine is a partner and Head of the Employment and Benefits team at William Fry and Chairperson of the Employment & Equality Law Committee of the Law Society. She is one of the Diversity & Inclusion partners in William Fry and is also involved in the Mentoring programme there

Like many organisations, remote work became a necessity quite suddenly for William Fry and the whole company has been working from their homes since the 13th of March, Catherine tells us. As a professional services law firm, remote work was not the norm, but it has been an option for some employees even before the pandemic. They already had the infrastructure; the IT systems and support services which were in place for anyone wanting to work from home. The transition to this new working environment was more straightforward for those that had already worked remotely previously, but now they have a support system in place for the entire workforce. “Certainly, support is in place for people who’ve never worked remotely. In terms of online training, or access to any equipment that they might need, and obviously, then for managers who manage remote teams, that’s a challenge in itself.” 

Changing the way people perceive remote work

Catherine talks about the perception that working from home isn’t as productive as being physically present in the office, and about the reluctance to take it on or to allow it. In the end, it all boils down to being able to trust your employees and teams. Trust is vital.

Some recurring points come up around the idea of working from home, especially the fact that people can incorporate other non-work-related activities in their working day. It might be a parent picking up kids from school or hanging up a wash, but as Catherine states, if the job gets done, these things don’t make a difference. It’s all about finding the right work-life balance, which is different for each individual. 

Employee support is also an essential aspect of a healthy working environment at William Fry during this time. Some people may feel like they need more assistance, or they might be struggling to manage work and homeschooling. It’s essential to make sure these people understand that if they need flexible hours or a condensed working day, these options are available for them. People’s morale is also something Catherine mentions as she brings up how much they have been enjoying virtual bake-offs or that virtual cup of tea at half ten, highlighting just how vital team communication is. 

The legal implications for employers regarding remote work

Catherine tells us about several obligations that employers should think about, the first being health and safety. Under the Safety, Health and Welfare at Work Act dating back to 2005, an employer is legally obliged to provide employees with a safe place to work regardless of whether it’s in a traditional office space or at home. In this context, Catherine recommends that employers ask employees to complete a self assessed risk assessment of their work space at home. Catherine’s advice for employers is to start by reading the FAQ document provided by the HSA and then to provide their employees with the HSA online ergonomic assessment. Another vital aspect for employers to consider is making sure they have the updated contact details of their entire team. Those details also need to cover a next of kin or someone they can contact if an employee is out of reach.

Catherine also talks about working time and the legal implications of not keeping an employee work time record. Even when working from home, employers are still obliged to keep an eye on the hours their employees are working. There’s an obligation to keep daily records of working time, that include start and finish time and breaks (this should be kept for three years!). 

“There have been cases where employees who felt they were always obliged to check their inboxes bring claims against their employers, on the basis that they’re working excessive hours. And there have been times where employees have succeeded with those claims. I guess that brings us back to the point about keeping records off your employees hours, if you’re not keeping those records, it can be challenging to defend those type of claims because the burden of proof really will be on the employer.”

What working arrangement options can employers offer after the pandemic

Catherine’s law firm has been advising businesses on how to respond to their employees’ requests in allowing remote work to continue once the situation improves. Organisations can expect their people to want to work from home perhaps five days a week, or maybe one or two days a week. So employers, again, should start thinking about what their response is going to be. Do they have a policy for these type of requests, how will they deal with these requests? Focusing on the legal position of employers, now is the time for organisations to put that policy in place. Employers are not required to concede to this request, but they must consider it carefully and communicate their response to the employee. 

People are going to have a lot of concerns about their safety when returning to work, especially on whether they will expose themselves to anything that they don’t want to bring back to their children or parents. There is a lot to think about from an employers perspective when dealing with safety in the workplace. How will they be able to adapt the space to accommodate social distancing? Are the cleaning facilities up to scratch? Should they close common areas like canteens or kitchens? The bottom line is that employers need to make sure they can provide a safe space for their team to feel comfortable about when returning to work. 

With all these concerns in mind, Catherine thinks that this particular period is proving the benefits of remote work. That people can maintain or in most cases, they can increase their productivity when working from home and that it all comes back to the support systems organisations have in place. “If you have that infrastructure and support system in place, you can do great things remotely,” Catherine says. 

You can watch the full video of our convesation here.

Go to www.williamfry.com for more information, articles and webinars that the William Fry team have put together concerning COVID-19 issues. Or reach out to Catherine O’Flynn on LinkedIn.