Most workers have no legal right to home or remote working once the return to workplaces gets underway, a solicitor says.
Richard Grogan says there could be a bit of a legal 'mess' coming as companies and their employees alike try to navigate new, post-pandemic working arrangements.
Under the Government's reopening roadmap, a phased return to offices and other workplaces can get underway from September 20th.
Many thousands of people have been working from home since March 2020, meaning they could soon be returning to their workplaces for the first time in 18 months.
The Government is planning legislation to give staff the right to request to work from home, although that does not mean the employer will be obliged to say yes.
In the meantime, workers will have to honour their contracts if an employer tells them to return to the office.
Richard Grogan, Employment Law Specialist, spoke to The Pat Kenny Show about what all this means and answered listener questions.
He explained that employers are not obliged to offer work from home options “unless a person has a disability, or possibly in the case of those who have child-minding issues".
He said childminding is likely to cause problems over the coming months, amid a shortage of places in creches.
Richard explained: “They’re going to have to give a period of time to allow someone to organise childcare.
"It’s not the law, and there will be people getting onto lawyers to go through the strict legal hoops of saying no.”
He said we'll have to wait to see what the legislation around remote working requests looks like, but any related cases and disputes aren't likely to come before the WRC until late 2022.
Richard noted: “In the meantime, the employee will have no choice but to come to the workplace.”
Legal 'mess'
Currently, there's no legislation around requiring proof of vaccination for a return to the office - so employers won’t be able to ask staff whether they've been vaccinated.
Richard believes this is a problem that's been "sidestepped" by the Government.
He told Pat: “The issue for doing a health and safety assessment is… [employers] have to do the health assessment on the basis that nobody is vaccinated. That’s going to cause additional costs… and the whole issue of social distancing.
“There are also going to be a lot of employers saying ‘I’m not happy working with a non-vaccinated person… I know they’re not vaccinated’. The employer is going to say ‘you can tell me that, but I can’t know it, record it, or do anything about it’.
“There’s a bit of a mess coming, and there will be a lot of cases down in the WRC unfortunately.”
Meanwhile, employees and employers will both be obliged to take steps to ensure health & safety in the workplace.
Richard observed: “I certainly think you’re going to see mask-wearing being compulsory in an awful lot of workplaces, even if it’s just 25% [of staff back at first].
"When the employer can’t check on the vaccination status, it’s going to be down to mask-wearing and social distancing and very strict rules on people [gathering].
“It’s a bit of a nightmare how we’re going to do it because the Government isn’t going to bring out regulations - they’re going to bring out guidance. The return to work protocol they’re talking about is not going to have any legal standing.
“Unless the HSA comes out and bring out rules… then it’s going to be very much ‘you’re on your own and hope for the best’”.
He believes some employers will allow workers who have worked well from home to continue doing so, but they might be keen to get other staff back into the office as soon as possible.
He noted that Ireland has been in an emergency situation, but now that the emergency is finishing it will be back to “what the contract says” in terms of a worker's official place of work.
Hybrid working
Maeve McElwee, Director of Employer Relations at IBEC, told the show many employers are now looking at hybrid working models for the future - something that was already under consideration pre-pandemic.
She said: “We need to recognise that everybody fully remote and hybrid working systems are entirely different animals.
"We’re going to see a lot of changes coming through over the next number of months as organisations settle down into their norm.”
For the immediate future, employers are being advised to plan ahead and to bring staff back in a staggered and managed way.
Maeve observed: “Engage and consult with [workers]. There may be no right to home working… but we do now it’s clearly something employers will want to engage on.
"[Businesses] will want to keep staff who have been working really effectively remotely.
“[Some other] people might prefer to have a bit more time in the office. It will be flexible on all sides I think.”
