COVID-19 - Remote working policies and key challenges ahead

The Government’s Roadmap for Reopening Society and Business encourages employers to maintain remote working arrangements for employees who can work from home for all five phases. This aligns with the Return to Work Safely Protocol which specifies that “office work should continue to be carried out at home, where practicable and non-essential work”. For many organisations, this will mean requiring employees to work remotely on a longer term basis. Employers should plan for the long term and ensure their remote working policy, and related documentation, is fit for purpose. In this bulletin we offer top tips for employers when implementing, or updating, their remote working policies, noting key challenges in the months ahead.

Top tips for remote working policies:

1. Clear communication - Many of the legal risks associated with remote working arrangements can be mitigated by effective communication so employees are clear on how the arrangements will work. The remote working policy should deal with issues of general application and can be supplemented by an individual written communication to each employee dealing with specific issues related to that employee. Changes to the employment contract may also be required.
   
2. Discretion to change arrangements - The policy should provide for a trial period, or discretion for the employer to change the arrangements and require a return to the office.  If the remote working arrangements are temporary to address the health and safety risks of the pandemic, this should be confirmed in writing to the employee.
   
3. Role requirements -  The employer should clarify the employee’s role requirements when remote working. Such requirements may be taken into consideration when assessing any "trial period”, or when assessing performance more generally.
   
4. Working time - The policy, or individual communication, should confirm whether employees have flexibility with regard to hours of work. Employers should also consider how they will monitor working hours when the employee is working remotely.
   
5. Practical matters -  Arrangements for practical matters such as: equipment, insurance, expenses, updated absence reporting mechanisms, and any tax issues should be addressed in the policy or individual communication.
   
6. Data Protection and confidentiality - The policy should outline any additional measures to be taken to ensure the security of confidential, and personal data during remote working. The Data Protection Commission has produced very practical guidance on protecting personal data when working remotely.
   
7. Health and Safety - The policy should remind employees of their responsibility, under the Safety, Health and Welfare Act 2005, to take reasonable care of themselves. The Health and Safety Authority has published guidance in relation to temporary remote working which includes questions, to be answered by employees, to enable employers to determine whether the temporary home workspace is suitable from a health and safety perspective.

Key challenges over the coming months will include:

• How to deal with the performance management of remote workers, how to measure performance for the purposes of probationary reviews, and how to deal with mid-year reviews; and
• How to deal with employees who may wish to continue remote working rather than return to the office, particularly where they are in “at risk” categories as defined by the Return to Work Safely Protocol.

Employers should consider the above issues in the context of any more general review of the remote working policy, and related documents, and ensure that their remote working plan of action covers these issues.