Key Considerations for Employers from the Remote Working Strategy

The Government published the “Making Remote Working Work” on 15 January 2021 (the “Strategy”).

This framework details how the Government proposes to implement legislation which affords employees the right to request remote working capabilities from their employer.

Under the Strategy, remote working is defined as “a form of organising and/or performing work, using information technology. In the context of an employment relationship, where work, which could also be performed at the employer’s premises is carried out away from those premises on a regular basis”.

It is expected that the legislation to request remote working will introduced in the third quarter of 2021. The legislation will provide for:

• Employees to request to work remotely,
• Employers to establish a review or appeals process for those whose request is refused
• Training for employees on remote working within the Company

What does this mean for employers?

While the legislation provides a right for employees to request remote working capabilities, it does not oblige employers to allow remote working. However, employers will have to respond to requests and show a clear and objective reason why they are refusing a request.

The Strategy also sets out that it is envisaged that at least 20% of public sector employee’s work will be carried out remotely once the new legislation is implemented.

The Strategy acknowledges that remote working is not compatible with certain industries. However, if on-site physical presence is not required, then employees performing administrative duties will have the legal right to request remote working.

In advance of the legislation being passed, employers need to consider whether their business model can support remote working requests and ascertain the types of roles for which remote working may be considered.

What might employers consider now in advance of the introduction of the legislation?

Many employers, due to the impact of COVID-19, were left with no alternative option to introduce remote working at short notice. We considered the key issues employers should consider in our Remote Working – How to maintain Connects at a distance briefing

For now, if employers have remote working policies in place, they should review those policies, and consider the core components which from an employer’s perspective will redefine the employment relationship between employers and employee, as set out below.

If an employer recognises union membership, they may consider commencing pre-emptive discussions with trade unions on remote working.

What factors should be considered for updating a Remote Working Policy?

Terms & Conditions of Employment:

• Consider does your contract provide for remote working?
• Consider how you will comply with maintenance of working time records & ensuring employees take rest breaks?

Health and Safety:

Where an employee is performing their duties outside the office, the employer is liable for their employee’s health and safety.

• Employers should conduct a risk assessment of the employees proposed working environment. Employers must provide employees with the necessary equipment and ensure the employee’s proposed working environment is suitable.
• Maintaining contact and communication with employees to mitigate work related stress or isolation from a health and safety perspective.

Data Protection & Cyber security:

Employers must consider how to manage confidential information, client details and access to client files where an employee is working remotely, particularly if that employee is living in shared accommodation/space with others and how to mitigate threats to data security.

Equality:

Employers should now consider how to implement mitigation measures to ensure that equal access to career development, mentoring and training are available to those employees who work remotely.

Employers should also be mindful how they assess the request for remote working based on objective criteria. In order to avoid a claim for discrimination, employers should be mindful to ensure that equal treatment is applied uniformly.

Insurance:

Employers should ensure that where an employee is working remotely that they notify their insurer of this arrangement. Employees should also notify their insurer and ensure that appropriate insurance cover is arranged.

Tax:

Currently employees remotely working may avail of €3.20 which is tax free or claim for   costs incurred in relation to electricity, heat and broadband expenses apportioned on the basis of business and private use.

Employers should regulate and clarify this position in the employee’s contract of employment.

While due care has been taken in drafting this briefing, it should not be construed as legal advice.

 

Should you require further information or assistance on how to update your employment policies, please contact Elaine O’Flynn or one of the team listed below.