Avoiding the Risks of Remote Working

by Patrick Walshe, Partner in the Employment and Pensions group at Philip Lee

Working from home is here to stay, and while it does not fundamentally alter the employer/employee relationship, there are some practical differences that you need to keep in mind

Hundreds of thousands of Irish workers have spent the better part of the last two years or so working from home. It is undeniable that a significant proportion, most likely the majority, will want to continue working this way for the foreseeable future.

Employers, understandably, were unsure about the viability of remote working at the outset of the pandemic. Repeated surveys have demonstrated that both employers and employees now realise that it is the way of the future, but what pitfalls are there for employers in remote working arrangements and what things do they need to be aware of?

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One point to bear in mind at all times is that remote working does not fundamentally alter the employer-employee relationship. From an employment law standpoint, it is really only the working location that has changed: all other aspects remain the same. Specifically, the employee’s obligations are the same, and so are the employer’s.

There are, however, some practical differences, and it is in this territory that risks arise. First of all, employers need to be mindful of the risks of employee isolation. In a physical office, it is much easier, obviously, for an employee to obtain support from a colleague or member of management if they are under pressure.

Employers need to check in regularly with their staff, ensure that employees are happy and generally do as much as they can to provide support and assistance where needed. It may be the case, for example, that periodic in-person meetings – observing public health guidance, of course – are necessary. Regular contact is essential either way.

As well as supporting staff, employers should be creative when dealing with employee isolation in general terms. There are no “water cooler moments” when everybody is working from a different location, so anything that can be done to replicate collegiality is recommended.

Again, a level of in-person social events can help, but so can encouraging staff to talk to each other socially even when working remotely. Every little helps, in other words.

Employers should be mindful of and guard against any tendency to favour those staff who come into the office regularly for career advancement. Someone who is working just as productively from home deserves to be kept in mind for any promotions and it’s dangerous to forget that.

Employers should also be mindful of health and safety obligations. The fact that an employee is working from home does not absolve the employer’s obligation to provide a safe place of work and among other things, an employer must carry out a health and safety assessment which, the Health and Safety Authority usefully clarified last year, can be done remotely. In practice, this obligation is very often overlooked and it should not be.

Employers also need to be very cautious around data protection and confidentiality. In one central location, it is easier to maintain a rigorous system for protecting client, customer and employee data. This is more difficult in a remote working environment, especially where younger members of staff, for example, may be working from shared accommodation.

The solution here is to educate the workforce on what they should, and should not, be doing in practice. Clear practical guidelines should be put in place and regularly reiterated. Obviously, the consequences of a data breach could be catastrophic, so it pays to pay very close attention to this.

Employers should also be careful to regulate remote working arrangements. A remote working policy is essential which should make it clear that the employer has the right to monitor the situation and withdraw remote working, on reasonable notice, if necessary. The policy should also deal with other practical points including those set out above.

Putting time and effort into drafting a comprehensive policy which clearly explains the rules and makes it clear what an employee should do if they are encountering any kind of difficulty is well worth it.

As always in the employment relationship, communication is key and an employer who goes to the trouble of anticipating and addressing potential pitfalls will be in a much better position to deal with any problems that arise.

Article first published in the Sunday Business Post, Decembe 2021.

About the author
Patrick Walshe is a partner in the employment and pensions group at Philip Lee.
Patrick’s experience in non-contentious employment law ranges from drafting contracts of employment and employment policies to advising on industrial relations disputes. He also advises employment law clients in relation to health and safety issues, transfers of undertakings, equality issues and independent contractor arrangements.
Patrick’s experience in contentious employment law runs from prosecuting and defending Employment Appeals Tribunal claims, participating in Labour Relations Commission conciliations to litigating cases in the courts. He also advises in relation to bullying and harassment claims, internal disciplinary investigations and unfair/wrongful dismissal claims