The normalisation of 'Remote Working' is welcome but guidance is needed on key issues
Increasingly, larger organisations are adopting progressive policies on remote working, to reflect its normalisation as we emerge from the profound effects of Covid-19. Many business models are being redesigned by firms embracing digital transformation. We know that remote working, if well managed has the potential to improve productivity, attract and retain talent and to grow workforce participation.
What constitutes ‘flexible work’ can include different contractual arrangements consisting of a combination of home and office-based work and is a way of working using technology to allow work to be carried out regardless of location. For some, a return to the 'office', will come as a relief. For others, remote working will remain a significant feature of work organisation but will not be for all. Government is committed to a target of 20% of public sector jobs working remotely be the end of 2021 and the creation of 400 remote working hubs nationwide. Under the proposed ‘New Rural Ireland’ five-year strategy consideration is to be given to incentives to attract remote workers to rural areas. In January 2021, the Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar, TD, published Ireland’s National Remote Work Strategy which envisages, amongst a range of measures:
· Legislation to provide employees the right to request remote working.
· The introduction of a legally admissible code of practice on the right to disconnect from work, and
· A review of the budgetary treatment of remote working.
Workable Guidance is Still Needed
Whilst these measures represent an important positive step, their success also requires workable guidance still to be provided to employers who need clarity around occupational health and safety requirements and on balancing employee’s right to privacy and the monitoring of working hours as well as performance. We know that many organisations have been reluctant to have a written remote working policy because of the inability to make all roles remote, and the potential equality issues that could arise as a result. We know too that if remote working is associated with prolonged working hours (an inability to disconnect) this encroaches on an employee’s personal life and a risk of heightened stress for remote workers. Accordingly, employers and employees need further balanced guidance in the following areas:
1. Communications and Engaging the ‘Employee Voice’ - Managers need to appreciate the importance of regular communication and regular check-ins both for operational reasons and for developing relationships.There is an opportunity to learn and share experiences of working during the 'lockdown' and to explore employee insights. Employers need to consider how to engage the ‘employee voice’ about the future of remote work and to include any recognised trade unions.
2. Equality & Inclusion – Some employers remain reluctant to introduce a formal remote working policy, arising from a concern that it could give rise to equality issues, if remote working is not open and available to all employees. Employers must work hard on inclusion to ensure that everyone has visibility and that potential inequalities e.g., concerning access to promotions or other opportunities are not reinforced by remote working.
3. Health and Safety – The absence of guidance on the employer responsibility in the event of work-related accidents and risk assessments for employees working at home (or in a hub) resulted in a fear of liability amongst employers. The HSA has produced helpful guidance on working from home. An employer must provide a safe place to work and so reasonable preparations for establishing workstations in the home must occur and accessible information to enable remote workers to self-assess and educate themselves on the best set up for a home working arrangement is essential.
4. A Right to Disconnect – The WRC is working on a Code of Practice on this issue following a public consultation. It is envisaged that the Code will set out guidance for employees and employers on best practice for employee disengagement outside normal working hours. It remains to be seen what such a code will provide but issues of connecting or disconnecting should be decided at the level of the individual with their employer, subject to guidance under any Code of Practice. The existing working time legislation time is being examined to consider any deficiencies in this area. However, that legislation (the Organisation of Working Time Act 1997 – "OWTA") already includes specific rules on working hours, rest periods and rest breaks. These statutory rules arguably already involve a right to stop working or to "disconnect" and employees can take statutory claims under the OWT Act.
5. Data Protection & Cyber Security - Guidance is needed on balancing data security and cyber security when engaging in remote work. Employers would benefit from a framework specifying the appropriate technical and organisational measures to be implemented to ensure that personal and sensitive data is kept confidential and secure for remote working. This should also recognise the need for employee training on risk mitigation and response protocols to cyber incidents and data protection issues. Employment policies on remote work will need to address, email and social media use, cloud and network access and the maintenance of strict confidentiality.
6. Training & Resilience - Training for employees working remotely and for managers of distributed teams is key to the successful interpretation of remote working policies. The employee and his/her manager should agree effectiveness criteria as part of the means of managing performance in a remote working arrangement. For managers, Covid-19 has tested their skills in leading remote teams and on motivating for best performance whilst seeking to maximise inclusion and innovation of team members. Further training is needed for team leaders on managing employees remotely, monitoring productivity, building employee engagement and resilience, and managing employee performance.
7. Wellbeing & Inclusion Issues – Remote working can lead to some personal isolation and impacts on social interaction. Younger workers are more likely to be concerned about the lack of interaction with colleagues. Employers will need to consider how best to organise proactive supports to employees to support long term employee wellbeing and inclusion such that no person feels excluded or disadvantaged by their remote working and that change is pursued with employees, not for them.
8. Employment Law Needs Updating - Remote working during Covid-19 has exposed the dated nature of some of our employment laws and their relevance to remote working where e.g., people may have to operate in different time zones. Employers and employees face many challenges when seeking to ensure compliance with health and safety or even working time legislation. Too much of our employment law is designed for traditional forms of work organisation and needs updating. An employer is required to keep a record of hours worked, and the employee is responsible for assisting the employer in complying. In the case of remote working, this should include greater emphasis on the requirement of the employee to cooperate with any changes to systems to track working hours.
Businesses Need to Consider Performance and Reward Issues
We are unlikely to see any legal obligation on an employer to provide employees with remote working arrangements albeit the Government intends to legislate to provide the right to request remote working. This will need to be properly considered by an employer against objective criteria but the right to decide what working arrangements best suits the business must remain with the employer.
Whilst remote working gives more flexibility for all, arguably a greater output focus is needed. Collaborative online tools can facilitate teamwork and boost productivity. This may not have implications for the reward of most existing employed remote roles in the near term, or at all, as a change would require staff agreement. Some unions have raised the issue of an employee ‘right to set’ their working hours which is unrealistic. However, employers, for some new roles, may want to change the productivity mindset to put an emphasis on the work completed so that reward structures recognise performance delivered rather than paying solely for working time.
Model design will vary but this could afford real flexibility for an employee to manage their hours, or how and when they work, so that they can organise their work around their life. This could allow employers to better recognise those employees who deliver what they promise and to reduce the risk of ‘presenteeism’. Critically, an employed person would still have their employment rights maintained, with the employer observing all employment standards and HR policies applicable to relevant staff.
At Stratis, we predict that we will see a variety of options and that many employers will want to see ‘work flexibility’ as a recognisable part of their culture. Employers need to take a function-by-function approach to see what models of remote work, if any, could work. Key issues will include (a) the extent of customer interaction which a role requires, (b) the need to access onsite facilities, (c) the nature of close supervision required and (d) the amount of collaboration with other employees needed. As a result, some roles may be designated as 'remote first', whilst others may lend themselves to a ‘hybrid’ model or a combination of home, hub and office-based working or roles which will be 'office' based but which could be done remotely for short periods. These solutions will have to be designed to facilitate collaboration, reporting and teamwork. As always, if employers look to build a virtual relationship with staff, business leaders will need to show by example and model the change, by using a hybrid model.
These matters will need to be part of reimagining the work organisation as recovery takes hold.
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Disclaimer: The information in this article is for practical guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.