What are the remote working implications for employers? Patrick Walshe in law firm Philip Lee delves into the issue

With every day that passes, we hear increasingly worrying news about the spread of the coronavirus in Ireland. The advent of the virus is giving rise to more and more buzzwords, and ‘remote working’ is one of them. But what exactly does it mean,  and what are an employer's obligations?

• The first and most basic point to consider is whether an employer can request that employees work remotely in the first place – work from home instead of their normal place of employment.

A well–drafted employment contract will usually contain a clause addressing the location at which the employee carries out their duties, and typically it will give an employer discretion to request an employee to work at a particular office or in another location.  A reasonable request on foot of that clause is likely to be acceptable.

Employers aren’t stuck if their suite of contracts don’t contain such a clause.  It’s reasonable to ask staff to work from home if it’s simply not possible to work in the central workplace at a point in time.

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More to the point, employers have an unequivocal obligation under health and safety legislation to maintain a safe place of work, and if adhering to their obligations means requesting that employees work from home, that is also likely to be acceptable.  Needless to say, the risks posed by a contagious virus are going to qualify.

• As far as rest breaks and working hours are concerned, the fact that the employee is working from home makes no difference. They are entitled to work the same hours they would in the physical workplace and are entitled to all of the same working conditions, including breaks.

In fact, all of the employee’s entitlements (including the right to accrue annual leave) will remain exactly the same despite the fact that they are working remotely. Not being physically present in the office makes no difference. Equally, the employer’s entitlement to a full day’s work from the employee is exactly the same — something employers should not forget!

• One point that is frequently overlooked is health and safety.  An employer's obligation to maintain a safe place of work applies just as much in circumstances where the employee is working from home.  Employers are also obliged to satisfy themselves that it’s safe for an employee to work alone in the first place.

There is, admittedly, a certain lack of reality in the legislation.  An employer is under a statutory duty to identify hazards and assess risks in the workplace, and set out steps that employees must take to mitigate those risks. It is relatively easy to conduct a health and safety assessment of a central workplace, but it is likely to be extremely difficult to conduct individual health and safety assessments of employees' houses (even more so if the workforce is substantial).

There is no easy answer to this, although employers can at least mitigate against the risks.  For example, it ought to be possible for an employer to set out high-level health and safety guidance in writing.  It may be appropriate to ask staff to complete a questionnaire in relation to their home working conditions.  Lastly, employees should be reminded that they have responsibilities themselves to look after their health and safety.

In the present climate, one practical response might be for employers (particularly in large organisations) to identify a dedicated member of management who will address any health and safety issues as far as possible.

• IT security shouldn’t be overlooked.  It's relatively straightforward to safeguard client/customer data when employees are working from computer terminal/laptops in the company’s premises.  Where multiple employees are working from multiple locations, however, the position is obviously more complicated.

Employees should be given practical and easy-to-follow directions on protecting their employer’s data (and the data of customers and clients), starting with basic directions around remembering to log off when the employee is taking a break or finishing work for the day. Needless to say, an employer’s obligations under data protection legislation remain fully in force during a period of remote working.

• Lastly, communication is key. A sensible employer will explain clearly to staff why remote working is necessary and also set out clear guidance on how it will operate. Before remote working commences, employers should send a bulletin to their workforce addressing key points and providing key guidance.  Among other things, this bulletin should address health and safety, IT security, confidentiality and any other critical areas.

If implemented properly, remote working can be a highly useful tool for employers in the current climate – and all employers need to do to protect their position is take a few straightforward precautions.

• Patrick Walshe is a partner at law firm Philip Lee and an expert in employment law.