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The experience of many workers of working from home during the Covid-19 crisis has led to a greater interest in remote working arrangements generally. For some the return to their familiar 'office' environment, will come as a welcome relief, where for others, the experience has awakened a serious interest in having more flexible work location arrangements. Remote working, at least for some, is here to stay. Proponents argue that remote working could have a positive impact on the environment as it would likely result in less pollution from commuting, as well as help families in terms of arranging childcare. Others argue that if remote working results in excessive working hours this can put a strain on health and productivity and therefore should be discouraged.

The rapid conversion to 'remote working' due to the onset of the Covid-19 pandemic has brought these issues to the fore and they will remain with us as the crisis passes. Faced with the challenge of responding to the Covid-19 crisis, employers and workers are facing many challenges as we adapt to new ways of doing business and remote working continues to be encouraged, where possible, for office or non-essential work, where practicable even as the emergency measures are lifted.

What constitutes ‘flexible work’ is complex and often can include a wide variety of different contracts and ways of working. However, remote working consists of a combination of home and office-based work and should not be confused with the requirement to work at alternative locations such as client offices. It is a way of working using information and communications technologies in which work is carried out regardless of location.

'Remote Working is not a job but a method of working'.

Prior to the Covid-19 crisis, research (Note 1) commissioned by the Irish Government and published in December 2019 under Pillar 4 of Future Jobs Ireland 2019, found that among employers, increased productivity and cost-effectiveness are key reasons for permitting employees to work remotely. Meanwhile, 44% of employees saw greater flexibility as a primary motivator for working remotely. Some 41% identified reduced commuting time and 60% reported work-life balance as strong benefits.

The findings confirm that while the exact prevalence of employees partaking in remote working in Ireland is not known, the practice is growing. The report suggests that remote working has the potential to improve productivity, attract and retain talent and grow participation in the workforce. However, the research also identified that employers would benefit from increased clarity around occupational health and safety requirements and more guidance on balancing employee’s right to privacy and the monitoring of working hours as well as performance. Significantly, the research discovered that many organisations were reluctant to have a written remote working policy because of the inability to make all roles within an organisation remote, and the potential equality issues that could arise as a result.

The report further suggests that remote working can be associated with prolonged working hours (an inability to switch off or disconnect) and encroach on an employee’s personal life. This can lead to heightened stress for remote workers who are also more likely to work when they are sick. Guidelines on remote working must recognise diversity of issues for both employers and employees.

The Government’s view is that an increase in remote working arrangements can stimulate regional growth, widen the talent pool, reduce accommodation pressures in cities and promote a green economy.

The ERF supports this view and together with the findings of research on Remote Work in Ireland (Note 2), there is a need as part of the national 'return to work' effort underway, for the development of guidelines for employers and employees on remote work in Ireland. This can give employers access to a broader pool of talent, promote retention, increase productivity and improve cost effectiveness, whilst engaging in more sustainable ways of working. These guidelines should both encourage the increased use of remote working in appropriate circumstances whilst recognising too that it cannot always be available or may only be provided on a limited basis and will be role and organisation dependent.
We know that some key issues to be addressed, include the following:

1. Equality - Employers are sometimes reluctant to introduce a formal remote working policy, arising from a concern that refusal of requests for remote working could give rise to equality issues, where it is argued that a remote working policy is not open and available to all employees.

2. Health and safety – The lack of clarity on occupational health and safety issues is an influencing factor for employers when considering the introduction of a formal remote working policy. The absence of clear guidance on both employer responsibility in the event of work-related accidents and risk assessments for employees working at home (or in a hub) has resulted in a fear of liability amongst employers. If remote working arrangements are deployed or continued post the current emergency, reasonable preparations for establishing workstations in the home should occur. Where possible, information to enable remote workers to self-assess and educate themselves on the best set up for a home working arrangement should be provided. Guidance is available from the HSA:
https://www.hsa.ie/eng/Workplace_Health/Manual_Handling_Display_Screen_Equipment/
FAQs/Display_Screen_Equipment_FAQs/Display_Screen_Equipment1.html

3. Data protection - Guidance is needed on balancing data security and cyber security when engaging in remote work, particularly given GDPR and data protection legislation. Employers would benefit from a framework specifying the appropriate technical and organisational measures to be implemented to ensure that personal and sensitive data is kept confidential and secure for remote working. This would include data protection training for the employees engaging in remote work.

4. Training - Employers need clear guidance on how to address the cultural factors which surround remote work, to include trust between employees and managers when work is being undertaken remotely, maintaining visibility, and managing relationships when working remotely. Training for employees working remotely and for managers in managing distributed teams is a major enabler in the successful interpretation of remote working policies. It should be noted there is no legal obligation on an employer to provide employees with flexible
working arrangements. Moreover, the fact that flexible working arrangements exist within an organisation does not mean that every employee has an automatic entitlement to such an arrangement. Some employers are implementing policies that require their employees to spend
more time in the office again. This can be mandated by a need for more face-to-face interaction among employees to foster a more collaborative culture.

Therefore, we need to be cautious about how best to encourage a greater voluntary recourse to flexible and remote working arrangements. Any guidance to be provided to employers and employees which encourages employee’s to request remote or flexible working arrangements, should also reflect (i) the current legislative provisions governing an employer and the employee’s obligations if such a request is acceded to and (ii) give guidance on appropriate criteria to be followed which an employer ought to take into account in considering such a request. Where an
employer is willing to permit remote working, they will need to set out clear arrangements to ensure that the personal data processed by the person is kept safe when working away from the office. This should cover issues including (but not limited to) (i) the use of devices, (ii) compliance with email policy, (iii) cloud and network access, (iv) paper records (v) the use of electronic signatures and (vi) instant messaging and social media use compliance (vii) the need for clear communication channels and (viii) ensuring compliance with working time requirements.

At the time of writing, on the journey to reopening the economy, it is the case that as childcare services and schools are closed and public transport capacity is severely impacted by social distancing requirements, these impediments are directly impacting on return to work numbers for those businesses who are seeking to restart.

The Covid-19 crisis has brought the importance of childcare provision, cost and supply to the fore, particularly for 'essential workers'. Many creches and after-school programs function around the idea that a parent works a more standard working day schedule. They may not normally or wish to accommodate a parent’s unusual schedule. The profile and availability of childcare provision following the relaxation of the Covid-19 emergency measures remains very uncertain. The Covid-19 crisis has caused many businesses to cut jobs and other costs but also to pause and to think carefully about workforce planning, resourcing and organisation issues. As they work through their immediate responses to the crisis, they will want to consider the impact too for their longerterm resourcing strategy for their business amidst continuing uncertainty. Where people return to their familiar office spaces, there will also be the opportunity to learn and share experiences of what has and has not worked well during the 'lockdown', to better understand and explore insights about work organisation and opportunities to create the future. As we have learned to adjust to social distancing, in many cases, remote working has also led to some degree of personal isolation kind and inevitably will now drive real innovations in work organisation and configuration in response to both business and employee needs. Organisations must be able to decide what working arrangements best suits the business and in doing so to take account of individual needs. In any circumstance, where parties may be willing to sustain a level of remote working, along with all of the issues mentioned, this will also need to be considered as part of the suite of post Covid-19 temporary and longer term future planning responses by the organisation.

1 ‘Remote Work in Ireland - Future Jobs 2019’. Report published in December 2019 and developed by
the Department of Business, Enterprise and Innovation

2 ‘Remote Work in Ireland - Future Jobs 2019’. Report published in December 2019 and developed by
the Department of Business, Enterprise and Innovation

Disclaimer: The information in this article is for practical guidance only and does not constitute legal advice. The answers
to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional
advice relevant to individual circumstances facing your business.

Article prepared for ERF June 2020 - By Brendan McGinty, Managing Partner Stratis Consulting