Adjusting once again to another new normal

With thoughts turning to a return to the office, how will it work, what are the legal obligations for employers, and the rights of employees, asks Niamh Hennessy
Adjusting once again to another new normal

The Covid-19 pandemic has transformed how — and where — hundreds of thousands of employees in this country work. File photo

Across the European Union, Ireland had the highest proportion of employees working remotely during the Covid-19 pandemic at 48%, largely due to stricter lockdown measures.

The sudden and forced transition to remote working last year undoubtedly posed huge challenges for employers - with a need to invest in equipment, training, and establish ways of effectively communicating with people who are no longer in the same room. But once these initial challenges were overcome, many employers quickly came to realise that this thing they feared - an entire workforce at home - could actually work. And the statistics back that up. A survey from even found that people who work from home take an average of 2.4 sick days per year compared to the 2.6 taken by those working from an office.

Employers also woke up to the fact that office space is expensive to maintain. The annual cost for one workstation in a calendar year is estimated at up to €15,000, according to workplace consultant Abintra. Less office space means lower costs. Last month, Social media giant Facebook put a hold on inquiries for significant new office space in Cork that could have accommodated up to 1,000 employees. 

Facebook had been scoping considerable office space, according to sources, capable of accommodating about 1,000 workers. However, earlier this year, the tech giant said its employees worldwide could continue to work from home post-pandemic, prompting a reassessment of its office space needs long-term.

On the employee side, the benefits of remote working include a reduction in commuting and therefore fuel costs, a significant fall in outlay on childcare, and for the majority, a better work/life balance. The National Competitiveness and Productivity Council (NCPC) pointed out in a recent report how remote working can offer people a better quality of life and improve work-life balance. It also pointed out that it would reduce environmental costs by lowering commuting times which would see a fall in transport-related pollution.

For the moment, Government advice remains that those who can work from home should continue to do so. However, as the number of Covid cases fall, vaccinations increase, and the economy reopens, September could see a return to the workplace for thousands of employees. The Second Annual National Remote Working Survey, published recently, found that over 95% of workers now favour some form of remote or ‘hybrid’ working. 

However the survey also found that three out of four companies have not yet decided how things will operate post-pandemic. And for employees, some of the key questions are: Can I refuse to return to the office? Do you have the right to hybrid working? Do you have to be vaccinated after you return to the office? We ask the legal experts for their advice and assess what the landscape is likely to look like come the autumn.

What can you legally do?

Solicitor David McCoy said that in his view, once Government clearance has been given for a return to the office, then employees cannot refuse to go back unless they have a concrete reason - such as on medical grounds.

“If the company policy is to have everyone back then an employee must come back,” he said.

Kerrie Dunne, of Collins Crowley Solicitors in Cork and Dublin, points out however, that employees’ rights are protected under the Safety Health and Welfare at Work Act 2005 and under this, employers have a duty of care for all employees.

“Employers must give due consideration as to whether it is safe to ask employees to travel into work, for example those employees using public transport, or to undertake their work,” she said.

Ms Dunne said, however, that if an employee refuses to return to the workplace on instruction from management, this could be deemed a disciplinary matter and an employer could initiate disciplinary action against the employee.

“However the Government’s Work Safety Protocol expressly states that office work should continue to be carried out from home where practicable and non-essential. So as working from home becomes a longer-term arrangement, it is advisable for employers to engage with employees who express concerns regarding returning to the workplace and try to work with them to alleviate their concerns as best they can.

Ms Dunne notes that some employees may have unique circumstances that prevent them from returning to the office such as lack of available childcare or health issues “and if so, the employee should engage with the employer to try and put in place work practices that suit both employer and employee.” 

Employers can expect a raft of requests no doubt from their staff for a hybrid way of working, which would involve some office work and some working from home arrangements. Mr McCoy points out that while employees can request this type of arrangement it is at the discretion of the employer to grant it.

“An employer must be consistent on how they treat staff, they cannot expect some to come to the office and others not to. The Government has spoken about introducing legislation to allow working from home as a right but this has not happened yet,” he said.

Netflix’s Reed Hastings has been quoted as saying remote working is “pure negative”. 	Picture: Tobias Hase/AFP/Getty
Netflix’s Reed Hastings has been quoted as saying remote working is “pure negative”.  Picture: Tobias Hase/AFP/Getty

In Ireland there is currently no legal right for employees to be allowed work from home in the long term and it is very much individual employer based.

“The key question here will be for employers as to whether it will be possible to maintain a satisfactory level of productivity if running a hybrid model. Employers should look to the past 12 months as an indicator of how well their employees have adapted to remote working to determine if this option would work going forward. That said, employers will need to identify the roles best suited to hybrid working in the long term and thereafter consider restructuring policies,” said Ms Dunne.

The Government has asked employers to be as flexible as possible during Covid-19, and recently announced a National Remote Work Strategy which should provide much needed clarity on rights for employees going forward.

In any case Mr McCoy said before welcoming employees back to the office an employer should do a risk assessment.

“Even in post Covid times, I think employees can have an expectation of a certain amount of physical space between employees. 

Employers will have to consider if ‘forcing’ employees back to the office will be counter productive as they may lose good workers if too dogmatic.

Ms Dunne agrees: “It is imperative that an appropriate risk assessment is conducted to ensure that management makes an informed decision and that no employee’s safety is put at risk unnecessarily.” Jennifer Cashman of Ronan Daly Jermyn said that realistically it will be September before employees return to their workplaces, but considerable planning needs to take place now for that return.

Recently Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar published an updated Work Safely Protocol and this will act as a comprehensive guide for employers.

“It is important for all businesses and employers to familiarise themselves with the updated protocol, which is a general document applicable to all sectors. It is not designed to prohibit the introduction of further specific measures in particular sectors or workplaces and so employers and businesses should continue to review any sector specific guidance issued for their workplaces,” said Ms Cashman.

The updated Protocol includes information on the wearing of masks, the ventilation of workplaces, antigen testing and how a testing regime might be introduced and what both employers and employees should do if such testing is deemed necessary.

When publishing the protocol, Leo Varadkar said the Government’s advice is still to continue to work from home where possible. He also urged employers to consider how they can improve ventilation in workplaces, with even simple actions like airing rooms or keeping a window open.

“It is important to remember that the Tánaiste has confirmed that working from home should continue in so far as possible for the time being. It is anticipated that it will be autumn at the earliest before the Government’s advice changes in this regard. However, there is planning required for the return to the workplace and all businesses should now study the updated Protocol to make sure sufficient time is allowed to implement the measures outlined,” said Ms Cashman.

Tips for the return to the office

  • Consider if a phased approach to having people return to the office.
  • Assess the need for employees to work from the office — can some continue to work from home?
  • Start a conversation now on what your ongoing needs and preferences are.
  • Consider what needs to be in place before you return to the office, eg childcare arrangements, changes in daily routine, etc.
  • Don’t leave it until the last minute to figure out a solution for your return.

What are companies saying?

Companies big and small are starting to announce their plans for the post-Covid working day.

Pre-pandemic, the idea of working from home when you worked for a big financial institution such as AIB would have been quite alien. However the bank was one of the first to announce it would be moving to a hybrid model of working in the future. Staff would be allowed work from home and the office during the week. The bank pointed out that such a strategy will allow their employees to enjoy a better work/life balance.

PwC has announced that it will be changing how it runs its Irish offices post-Covid. It has around 3,000 staff in Ireland and it said it will be expecting staff to come into the office for two to three days a week as the company also adopts a hybrid model. EY also informed staff that it will be looking at more remote working, as did KPMG.

Facebook’s Mark Zuckerberg expects only half of his staff to come back to the office. Picture: Mandel Ngan-Pool/Getty
Facebook’s Mark Zuckerberg expects only half of his staff to come back to the office. Picture: Mandel Ngan-Pool/Getty

This trend has taken off internationally and many global companies are now open to the idea of remote working when previously they may not have been.

Mark Zuckerberg of Facebook said that he expects around half of employees will stay working remotely long-term post pandemic. Many other tech giants appear to agree. Twitter at one point told employees they could work from home “forever”.

However some companies are keen to see workers return to their desks, believing an office environment brings many benefits. Netflix CEO Reed Hastings has been quoted as saying remote working is “pure negative”. He credits the office as a place where staff can debate ideas and believes they miss that when working from home.

Return to the office poses different challenges

THE Government has made it very clear that vaccination is and will remain voluntary. They have also stressed that it is important that employers have guidance on how to manage any unvaccinated workers. Recently Tánaiste Leo Varadkar published an updated work safely protocol which confirms that the decision to get a vaccination against Covid-19 is voluntary. It does, however, highlight that employers may want to provide advice and information on the vaccination programme so that workers have the necessary information to make an informed decision.

Here we look at some scenarios that may arise when it comes to vaccination in the workplace.

An employee returning to the office doesn’t want to take the vaccine — what now?

Solicitor David McCoy says that, legally, employees absolutely cannot be forced to take a vaccine.

Kerrie Dunne, of Collins Crowley Solicitors in Cork and Dublin, agrees. She points out that while employers have a duty to provide staff with a safe place of work, there is currently no legal basis for employers to make a vaccine mandatory for employees.

“Irish citizens are protected by a broad set of personal rights under the Constitution which includes the right to refuse medical treatment. To comply with their duties, employers should encourage employees to take the vaccine as a way of reducing the risk of transmission in the workplace but cannot make vaccination a condition of employment,” said Ms Dunne.

Can I find out if my co-worker has been vaccinated?

If an employer knows who has been vaccinated they should treat this information with the highest level of confidentiality and fully adhere to all GDPR requirements regarding the same, said HR expert Louisa Meehan of Woodview HRM. “It is medically sensitive information so only those who must, for a lawful reason know, should know and the employee should be made aware of this in advance of the information being shared.”

Clodagh O’Donovan of AdvanceHR said that the issue around vaccines and what information should be disclosed and should be protected is a legal grey area.

“Obviously there is a duty of care that each employer has to their employee, however, there is also GDPR to take into consideration which prevents the sharing of personal data without consent. How these type of situations should be managed requires clarification and at the moment it is up to each employer to decide what they will do. This inevitable lack of consistency will be problematic and the ideal scenario is for guidelines to be in place prior to employees returning to the office so that employers can figure out how they apply to their business and employees.”

Can you be asked by your employer if you have had a vaccine?

Unless an employer has a clear ground for identifying who has been vaccinated, the safest option for them is to not ask the question in the first place and continue to impose all necessary Covid-19 safety precautions, says Ms Meehan. “However, if after having done a risk assessment, it has been determined that the organisation does need to know who has been vaccinated then they can request this information from all employees. Again it is up to the employee whether they opt to share the information or not.”

Can my employer ask me to get tested for Covid-19?

Some employers will request testing but if they do, there must be a lawful basis to the request and you should do so with the agreement of a medical practitioner.

If some workers are vaccinated and some are not, what should we do in our office?

The advice is to assume that some not all your fellow workers are vaccinated and continue working with all the necessary precautions in place to ensure that everyone is as protected as possible.

“In some organisations where this information is available, it may inform decisions about who is asked to be in the workplace physically and who is allowed to continue to work remotely, however it is necessary to be cautious regarding this as it may be seen as discriminatory under the grounds of disability if you treat staff differently on this basis,” warns Ms Meehan.

Getting ready for the return

In 2018, pre-pandemic, the ESRI reported that stress in the workplace had more than doubled in the preceding five years. And while many employees found working from home, and no commute, less stressful, others, particularly those trying to juggle work and childcare demands, are keen to get back to the workplace. Ms Meehan said the transition back into the workplace will be welcomed by many employees who have missed the social and collaborative side, however there is another group who have thrived in the remote working environment and are very cautious about the return.

“It is important to know that however you are feeling about the return to the office is OK and you are most certainly not alone. Employees should ensure they are fully aware of the procedures in place in their organisation regarding Covid-19 and new ways of working. In terms of the practicalities it is important that you feel comfortable when you return to the office, so doing simple things like having your clothes and bag ready for your first day a little like your first day of school will help to reduce the morning stress levels in getting out of the house,” said Ms Meehan.

There is legislation planned to allow employees the right to request flexible working arrangements but it will be up to the employer to grant such a request.

“It is safe to say that going forward there will be a significant increase in the number of employees who work remotely either on a full or partial basis. I believe it is better for employers to embrace this with a positive mindset and put in place practices and policies which work for your organisation rather than ending up in a situation where they are forced into something which is not quite the right fit,” added Ms Meehan.

Clodagh O’Donovan says the recent code of practice on the right to disconnect is a step in the right direction and will help remote workers set boundaries and encourage a healthier work/life balance.

“The culture shift that we had started to see pre-Covid has taken a huge leap forward and employees throughout Ireland have demonstrated their ability
to work effectively from outside the office. Supports must be in place for this to transition to permanent change and the combined upcoming legislation and the Government’s commitment to invest in remote work hubs will move this forward,” she said.

“After what will be the best part of 18 months of remote working, I do not see employees being interested in returning to the office on a full time basis. Most of the people I have spoken to are looking forward to getting back to the office. They miss the company of their colleagues, they have zoom fatigue and are looking forward to a change of scenery. This being said, they want remote working to continue to be a big part of their lives with two or three days working from home the preference for those working full time,” added Ms O’Donovan.

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