Advice for employers whose employees have moved to remote work

During the height of the pandemic, almost one-third of office workers were working from home with similar numbers expected this month.  There are advantages and disadvantages with the new working situation.Some workers find that they miss the social interaction that comes with the office, while others benefit from not having a lengthy commute and from spending more time with their children.  The reality of the situation is that going forward, it is likely that remote working will be here to stay, particularly for certain cohorts of society.  Therefore, it seems a timely opportunity to remind employers regarding their duties and obligations.Within this jurisdiction, there is a common law and a statutory duty on employers to protect their employees from the foreseeable risk of injury.

This duty extends regardless of where the employee carries out their work duties.  The 2005 Health and Safety legislation and associated 2007 Regulations provide for a very broad definition for the workplace – with a workplace defined as any place where work is being carried out.However, despite this fact, some employer’s insurance policies do not cover situations where employees are injured while working away from their employer’s premises.  Accordingly, it is imperative that employers review the soft copies of their insurance policies to ensure that they are indemnified in this situation.   If they are not indemnified by their insurers, they may be left carrying the can should such a scenario arise.Having satisfied themselves regarding their insurance specifications, it is important that employers carry out a Risk Assessment regarding their employee’s new working situation. For the majority of cases, the Assessment will be very straightforward as the majority of work being carried out remotely is office work.   In that situation, an employer will need to ensure that their employee’s new workplace is a safe environment.  To do so, they will need to carry out an ergonomic assessment.  If it is the situation that they do not employ somebody who is suitably qualified to do so, they can instruct a Health & Safety Consultant to do the necessary.

The Consultant will examine the height of the chair, the height of the table, the distance of the laptop from the typist, etc. ensuring that all is in order to obviate any unnecessary strain on the employees back and neck.  They will also ensure that lighting and ventilation is satisfactory and that the workplace is free from hazards, such as bundles of papers and trailing wires.  The employer should advise the employee of the manner in which the work should be carried out.  They cannot take a “see no evil, hear no evil” approach.  If, having been advised to carry out work in a safe manner, the employee wilfully refuses to do so, any personal injuries claim arising thereafter can then be robustly defended. Another readily identifiable risk is that of increased workplace related stress arising as a result of remote working.  Linkedin has indicated that 50% of employees feel stressed by their new working situation.  Employees, on average, reported working 38 hours extra per month when working from home, as opposed to from the office.  The “always on” culture has been a problem for many years now and it is likely exacerbated by home working.  Employers have an obligation under the organisation of Working Time Act 1997 to ensure that employees take the necessary daily and weekly rest breaks.  When an employee is working in the office, this can be readily monitored – it is easy to see your colleague going to the kitchen/canteen to make a coffee, taking lunch breaks, etc.  However, when one is working from home, monitoring and supervision of breaks can become more difficult.  However, it is important that employers are aware that the onus remains on them to record working hours and if it is a situation that a complaint is brought to the Workplace Relations Commission by an employee who alleges they have been denied their right to adequate rest breaks and have been required to work hours in excess of their contractual hours, the onus will be on the employer to defend that claim.  Generally speaking, a claim for breaches of the Organisation of Working Time Act should be lodged with the Workplace Relations Commission within six months of the date of contravention.  However, employers are obliged to retain records for a period of three years.

Accordingly, if a complaint is made to the Workplace Relations Commission, this can spur an investigation whereby an inspector appointed by the WRC will attend at the employer’s workplace.  The Inspector has a broad range of powers – they can interview employees, inspect records and documents and can impose Enforcement Notices and Fines on employers.  The attendance can spur a multitude of complaints thereafter and so, accordingly, an employer does not want to find themselves in such a situation.  Employers should ensure that they continue to contact their employees only during working hours, unless in the case of an emergency where contact should be for that purpose only. If it is the situation that the employee is working flexitime, it is important that the employer is aware of the working pattern so that they can ensure that rest breaks are adhered to and so that they can ensure that maximum working hours are not being exceeded. While there have been calls recently for the introduction of new legislation to bring about “right to switch off”, the Workplace Relations Commissioner and indeed the Labour Court have long since recognised this right.  In the case of Kepak –v- O’Hara, a Business Development Officer was awarded compensation in the sum of €7,500 in circumstances where she was required to respond to emails outside of her hours of work.  Employers can implement an electronic monitoring system for working hours, or alternatively, it is in order for them to ask employees to email them with a record of their rest breaks. Where done correctly, remote working can enhance an employee’s work/life balance leading to increased productivity and benefiting all parties.Contact us at Cantillons Solicitors at +353 (0)21 4275673 or info@cantillons.com if you would like more information. Share on Social

Jody Cantillon

Partner

Experience

Jody is a Partner in our Litigation Department.

Having graduated from University College Cork in 2009, Jody completed his apprenticeship with a top litigation defence firm in Cork City and qualified as a Solicitor in 2014.

Prior to joining Cantillons Solicitors in 2016, Jody worked for a leading Dublin firm, specialising in the area of commercial litigation and dispute resolution. There he gained valuable experience in defending and prosecuting high end, large scale commercial disputes before the Commercial Court.