Duncan Inverarity
A&L Goodbody, Dublin
dinverarity@algoodbody.com

Introduction

Since March 2020 the Irish worker has migrated from a full-time office environment to (for the most part) full-time working from home (WFH), and more recently, to an expectation (both on the part of the worker and the employer) to somewhere in between that which we now embrace as hybrid working. This journey has meant fundamental changes in our attitude, culture and the way we work. The Irish government, like most governments around the world, has had to react to the changing environment, often lagging behind the social realities and health necessities that Covid-19 has introduced to the working relationship. On one hand, this has resulted in a haphazard, ‘band-aid’ solution to a phenomenal social change. An alternative – and perhaps longer-term – view is that it has caused us all to move at a pace where traditional concepts of work and how we work have been turned on their heads and we should ‘bank’ and embrace the social and technological advances achieved out of necessity since the beginning of the pandemic.  

Remote working

With the outbreak of Covid-19 in March 2020, a majority of non-essential workers went from commuting to an office daily to working from home every day, overnight. Personal and professional relationships were challenged. The way we did business and interacted with family and friends all changed. We developed technical skills we didn’t know we possessed and Zoom, Teams, WebEx, Google Chat and the like became part of the daily vernacular. Initially only intended to last for two weeks, the exponential growth in infection rates meant the Irish government's WFH mandate was prolonged and became the new norm.

While plans were eventually put in place for a return to work, there was a tacit agreement between employers and employees that a full five-day week in the office was going to be the exception rather than the rule. The Irish government recognised this societal shift and began drafting a Right to Request Remote Working Bill (the 'Bill'). The draft Bill published in January 2022 provides employees with a statutory right to make a request for remote working and governs the extent to which employers must approve or refuse such requests. The Bill requires employers to put in place a formal remote working policy. This policy should set out the manner in which remote working requests will be managed, the time frame in which a decision will be made and the specific conditions which will apply to remote working generally within the organisation. When submitting a request to work remotely, the employee will be required to give notice in writing of the full details of the proposal to work remotely to the employer, including the proposed remote working location and the proposed number of remote working days to be worked.

The fact that the Bill has not passed into law in circumstances where remote and hybrid working has become an expected way of working is testament to the debate it has created. It has attracted criticism from the trade union movement on the basis that it doesn't provide a right to work remotely, merely a right to request to work remotely. The Bill sets out a non-exhaustive list of business grounds on which employers can decline requests. These include the nature of the work not allowing for the work to be done remotely and potential negative impact on quality/performance. These, for the most part, represent a fairly low bar for an employer to refuse a request. The Bill still has a long way to travel and may move more in the direction of a right to remote work. At the very least, the trade union movement wants the decision to refuse a request to work remotely to be able to be challenged before the Workplace Relations Commission, as opposed to the limited right to challenge in the Bill.

Remote working challenge one: Data security

Whatever right to remote working and the desire of a significant proportion of the population to avail of the opportunity, it is not without its challenges. One of the main challenges employers will face is compliance with data protection laws. Article 5(1)(f) and Article 32 of the European Union General Data Protection Regulation require data controllers and processors to implement appropriate technical and organisational measures to ensure the security of data. At the beginning of the pandemic employers and employees were not prepared for the sudden change to their work environment. Most employees went from having a dedicated work space to an improvised work station at home, often at the kitchen table in shared accommodation. This posed – and still poses – a risk that personal data could become compromised as the technical and organisational measures implemented by employers in the workplace often do not translate well to an employee's work station at home. Work conversations can be overheard by family members/housemates and laptops and other devices can be compromised if cybersecurity software is not kept up to date. In the post Covid-19 working world, employers will need to ensure any technical and organisational measures previously implemented can be maintained when facilitating remote working, or must find alternative solutions to ensuring compliance with data protection laws.

Remote working challenge two: The digital nomad

In addition to working from the kitchen table, an increasing number of Irish employees are now opting to work from terraces in sunnier jurisdictions. The rise of the digital nomad poses additional challenges for employers in terms of tax residency. Even stays abroad of a limited duration create a risk of income tax or social security becoming payable on behalf of the employee in the host country. The employee’s activities or presence in the host country also runs the risk of creating a 'permanent establishment' for the employer in that country. This is usually the case where an employee is exercising an authority to conclude contracts in the name of the employer while in the host country. If the host country deems the employer to have a permanent establishment in the country, the profits attributable to that establishment would be subject to corporate tax in that country. Finally, there is the matter of immigration and whether the employee has the right to live and work in the country that they find themselves in. In recognition of the rise of the digital nomad, many countries are coming up with creative solutions by acknowledging the right of individuals to remain in a foreign country and work remotely. There is clearly value to a country in allowing this to happen, particularly where the practice is not a threat to the local job market.

Remote working challenge three: The great resignation

While most employers who offer remote working view this as a pull factor, or additional employee benefit, remote working can also represent an obstacle in terms of employee retention. Employers are using employee-friendly hybrid working policies to attract talent but have not been as successful in keeping employees in their roles long term. Since the outbreak of the pandemic employers have seen increased turnover rates in what has been termed 'the great resignation'. According to a recent survey, 35 per cent of employees hired in Ireland over the past two and a half years have yet to set foot in their new workplace.^[1]  Employees are not interacting with their employer and fellow employees in the same way as they did before the pandemic. Those water cooler moments are being lost. This, coupled with unprecedented demand in the labour market, has resulted in high rates of employee turnover. With a majority of employees in favour of some form of remote working, employers are faced with the challenge of trying to create real relationships with their employees and workplace cultures within the business on the basis of significantly reduced face-to-face time.

Right to disconnect

The pandemic not only burnt the bridge between the office and the home – it also resulted in a further blurring of the line between employees' professional and personal lives. This didn’t necessarily lead to increased efficiency. It has led to people working longer hours to achieve the same (or only marginally greater) output. To counteract this, the Irish government took inspiration from a 2016 French employment law initiative ‘Le droit à la déconnexion’ or right to disconnect. The statutory Code of Practice for Employers and Employees on the Right to Disconnect (the 'Code') was developed in consultation with trade unions and business representatives and came into effect in April 2021. The Code provides employees with the right not to have to routinely perform work outside their normal working hours, the right not to be penalised for refusing to attend to work matters outside of normal working hours and the duty to respect another's right to disconnect (eg, by not routinely emailing or calling outside normal working hours). The Code aims to navigate the increasingly complex landscape of flexible and remote working. While a failure to follow the Code is not itself an offence, such failure may be taken into account if a claim is made under the relevant legislation in the courts, Workplace Relations Commission or Labour Court, such as under working time legislation.

The right to disconnect, by its very name, is a laudable aim. The reality however is that the Code is in large part a mixture of a restatement of various existing legal entitlements (ie, the right to a healthy and safe working environment) and common sense (ie, don’t expect me to respond to emails late at night!).

Conclusion

The Irish workplace and society have been irrevocably changed as a result of the pandemic. While some practices (remote working, technological advances) are to be embraced and here to stay, the extent of the impact of the legislative initiatives remains to be seen when the balance of power inevitably tips back in the employer's favour.