The Future of Work: Remote or hybrid working and the impact of Covid-19

It is not possible to engage in any discussion regarding the future of work without considering the impact that Covid-19 has had on commercial life. Remote working has been on the agenda for many years — it is not a by-product of the pandemic — but of course the pandemic has clearly accelerated the implementation of remote working in organisations that may never have considered it as an option.

The future of work is unfolding rapidly before us as a result of the pandemic. As office workers return to business premises, blended working arrangements appear to be the preferred option: time in the office and other times from home or a hub.

No automatic right to work remotely

There is no automatic right to work remotely. Most contracts of employment will require the employee to work at a specified location, typically the business premises. Once Covid-19 restrictions have been lifted, employers are entitled under the contract of employment to require employees to return to the business premises. Many employees may already have a contractual right to work remotely for a certain number of hours or days per week and that entitlement will remain the same.

National Remote Work Strategy and legislating for a remote environment

The Irish Government had already recognised and highlighted the potential for remote working in the 2019 Future Jobs Ireland report and so, when the pandemic struck in early 2020, much of the groundwork had been done. The National Remote Work Strategy “Making Remote Work” (the Strategy) was published by the Government on 15 January 2021 and a public consultation process on the right to request remote work was carried out between 1 April and 7 May 2021. The Government set a target date of Q3 2021 for the introduction of legislation to provide a framework around which requesting, approving, or refusing a request to work remotely can be based. No draft legislation has materialised at this point.

It is anticipated that the right to work remotely will be framed in language similar to the existing legislation governing requests for part time work: an employee can request but an employer does not have to grant; it will however have to provide objective, clear grounds for refusing. The legislation will provide clarity and best practice around what is potentially tricky terrain for employers. If an employer approaches remote working requests in a biased subjective manner, they may find themselves the subject of a complaint to the Workplace Relations Commission (WRC).

Code of Practice on the Right to Disconnect

In addition to the Strategy, a code of practice on the right to disconnect was introduced in April 2021 (Code). The Code provides employees with a right to formally disengage from work outside of normal work hours. One of the negatives associated with working from home is the perception (and sometimes the reality) of an employee always being available as the physical boundaries between home and the business premises become diluted. The Code paves the way for resetting the dial of the ‘always on’ culture. The Code is not legally binding but can be admitted in evidence in the WRC.

“It is anticipated that the right to work remotely will be framed in language similar to the existing legislation governing requests for part time work: an employee can request but an employer does not have to grant; it will however have to provide objective, clear grounds for refusing. The legislation will provide clarity and best practice around what is potentially tricky terrain for employers.”

Employer’s role

Employers should review their existing roles and policies to assess if accommodation can be made for remote working. Not all roles are conducive to remote working and employers will need to develop criteria to assess applications. A transparent, objective, factual matrix should be devised to avoid any allegation of unfairness, unreasonableness, or discrimination. Other factors to consider are:

Location of remote work

It is envisaged that the legislation will provide for a right for employees to request remote working at a nominated location or locations on the island of Ireland. It is unlikely that a right to request remote working abroad will be legislated for.

Health and safety and remote work environment

Health and safety legislation applies irrespective of whether an employee is at the business premises or at home. It is likely that the new legislation will require employers to conduct an initial risk evaluation and a risk prevention plan. It is anticipated that many requests for remote working post-Covid will fail as the remote work environment will not meet the necessary criteria. Kitchen tables and counters with spouses, partners and flatmates sharing working spaces were a forced necessity during the pandemic. As the emergency situation lifts, those working arrangements will no longer be acceptable.

People management

Managing teams remotely poses unique challenges and employers will need to review their internal communications strategy to ensure there are no gaps between those physically in the workplace and those operating remotely. Performance management of remote employees and providing equal access to training and career development are also matters which HR teams will need to consider.

Working time

Employers will need to ensure that employees are taking their breaks/rest periods and balance those legal obligations with ensuring that employees are logged on and doing their job. The use of monitoring technology in the remote workplace will have to be proportionate and balanced against an employee’s right to privacy.

Data protection and cybersecurity

Data protection policies and cybersecurity protocols need to be up to date to cover working from home and employees accessing confidential sensitive information outside the office.

Hybrid/remote working policy

A hybrid/remote working policy should be designed to allow employees flexibility in carrying out their duties in a manner that also meets the organisation’s business needs. The employer should also reserve the right to depart from or vary the policy as it deems appropriate in any case.

A note of caution

The Strategy cautions that remote working is not the silver bullet that many employees perceive it to be. The speed at which the pandemic evolved meant that, for many, remote working was not experienced in ideal conditions, with isolation and a sense of detachment from office culture. Junior staff have missed out on mentorship, collaboration, and a sense of collegiality. These factors have all fed into the desire for a hybrid model with collaborative work being done in the office and individual tasks attended to remotely. Trust has also been identified as an aspect of workplace culture that is particularly important in enabling remote work and is seen as an enabler of and a barrier to remote working. A lack of trust has the potential to damage the employment relationship which can lead to conflict and retention issues.

The legal and business implications of increased numbers working remotely need to be carefully considered by employers if the Government and societal vision of the social, economic, and cultural benefits of a hybrid remote working model is to be realised.

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