by Deirdre Malone, Partner with Ronan Daly Jermyn
Everyone seems a little jaded as we battle through another (rainy) lockdown in Ireland. Employers and employees are cranky and exhausted, trying their best to figure out how to balance their working day.
The Health and Safety Authority (HSA) has published a much-welcomed guidance document and checklist for employers and employees around working from home. Separately, following its public consultation over the summer months, the Department of Business, Enterprise and Innovation (DBEI) has published an online live resource and checklist for employers and employees to manage remote working arrangements . The DBEI states its intention to continue to update this resource. The submissions received will also be used to inform a National Strategy on Remote Work.
These publications come as a timely reminder to employers to check back in with employees around the practicalities of remote working.
Many employers implemented temporary remote working arrangements in an unplanned and urgent way last March. The time has come to accept that these arrangements are no longer temporary and need to be reviewed to ensure employer (and employee) compliance with strict health and safety obligations.
Although there are a great many benefits to home working, there are also many challenges, including an employee’s ability to disconnect, and managing mental health difficulties relating to feeling isolated from colleagues, team and employer culture/brand. The points highlighted below remind employers of their responsibilities to proactively engage now, to prevent complaints and claims at a future date.
HSA – Guidance on Working from Home
The HSA’s guidance document is practical, in terms of equipment and resources, but does not address many pertinent issues for employers, such as data protection, cyber security and obligations under the Organisation of Working Time Act.
- Managing home working
- Develop a comprehensive Work From Home (“WFH”) policy and train employees on it
- Consult with employees about the content of the policy
- Identify equipment and resources employees need to work effectively
- Risk assess the home working environment
- Review regular and keep communicating with employees
This is a two-way street. The employer’s duty to an employee under the Health and Safety legislation has always connected to the definition of workplace. A workplace today goes far beyond office premises and the Christmas party, and steps into the sacred place of an employee’s home. This raises issues around the constitutional right to privacy in one’s home, while balancing this with an employer being positioned to meet its legal obligations to an employee.
The duty of care extends responsibility to employees in the “workplace” to also take care of themselves, and report accidents, for example.
In preparing the WFH policy and training employees on it, consider specifying employee responsibilities, such as, what is the employee’s emergency plan in the event of a fire in their home.
- Home Office requirements
How suitable is the employee’s dedicated workstation to clear, safe, uninterrupted work? Employers are familiar with the requirement to ensure connectivity, equipment, appropriate light, heat and ventilation with clear floors (from cables or other hazards) for their employees.
While no guidance document expressly states it – the physical equipment is an employer cost.
Employers should ensure that the WFH policy includes direction on the following:
- What to do to if any electrical appliance supplied by an employer shows signs of any significant damage or scorching.
- Reminder not to leave phones and laptops unattended and charging for long periods due to the possible risk of fire.
- Employee confirmation as to suitability and safety of the electrical supply to their home.
- That the employee minimises the risk of fire in the home (smoke and carbon dioxide alarms in place and suitable firefighting equipment).
- Risk Assessment
Risk assessment of remote working environments is an area that many employers continue to tiptoe around. The assumption that all will be forgiven because of COVID, is a dangerous one. With the likelihood of further lockdowns, and anecdotal evidence that people will not return to the office before mid-late 2021, risk assessments cannot be avoided.
The risk assessment is a two-stage process. The first step is to ascertain what equipment and resources are needed and provide that to the employee. Once the home office is set up, it must be risk assessed in consultation with the employee.
A risk assessment can be carried out by video call. The assessor must be a “competent person” (someone with sufficient training, experience and knowledge). The checklist provided by the HSA is a helpful starting point for this exercise. This is important, as it moves away from the notion that employees can properly self-assess.
Ensure that training includes information on how to use equipment, the availability of eyesight tests, taking regular breaks (including leaving the home and getting fresh air) and how to prevent musculoskeletal physical injury.
Encourage those who continue to work from home beyond lockdown-living, to physically present “at work” at least once a month to check in.
DBEI Public Consultation
Over 520 submissions were sent to the DBEI in response to its public consultation on remote working guidance. Although the submissions are summarised and analysed, we unfortunately do not have any specific guidance to offer from the Department, and there are more questions than answers provided.
The key themes addressed align with many that are included above, but are also more focused on terms and conditions of employment. The main points include:
- Employment conditions and internal policies
- Organisation of Working Time – record keeping, monitoring
- Health and Safety – general and mental health, Safety Statement update
- Equality – access to remote working, performance appraisal and promotion
- Training – leading remote teams, building trust, and managing workload
- Data Protection – video conferencing, managing co-working spaces
- Cyber Security – providing secure non-intrusive remote working software
It is worthwhile to review the checklist provided by the DBEI. While it does not offer any answers, it at least ensures that employers are focused and consider specific factors when grappling with the challenges facing them in remote working arrangements.
The HSA’s guidance to employers and employees on home working is a very welcome publication. It is hoped that the DBEI will prepare the promised enhanced guidance on working remotely in the near future, but for the moment, its Remote Working Checklist for Employers (link below) is far more comprehensive than the HSA’s checklist and should not be disregarded.
The two checklists are critical starting points for all employers to ensure that they continue to comply with their obligations and responsibilities to employees in their extended workplaces.