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The government's telling you to work from home - what if your boss insists you come in?

Yesterday Tánaiste Leo Varadkar said the government is looking at giving workers a right to request to work remotely.

Image: Shutterstock

THE GOVERNMENT AND health officials have this week been encouraging people who return to working from home if they can.

Under Level 3 of the government’s Living With Covid-19 document, employees are encouraged to work from him if they can. Under Level 4,  which currently applies to Cavan, Donegal and Monaghan, only essential workers should go to work.

The National Public Health Emergency Team has recommended the entire country move to Level 5 for six weeks. This would mean another prolonged period of remote working for employees who had returned to their workplaces after the first lockdown.

Chief Medical Officer Dr Tony Holohan this week said he was concerned at the number of people who had returned to their workplaces when their jobs could still be done at home.

He said this can contribute to increased numbers using public transport and also in-person mixing between coworkers that could be avoided. Minister for Higher Education

Simon Harris, speaking to RTÉ’s Today with Clare Byrne earlier this week, made an appeal to employers to “show the leadership they showed in March and April” and allow their employees to work remotely, if their work could be done from home. 

He said the government would be engaging with business representative groups on it. “The rule needs to be quite straightforward; if you can do your job from home, your employer should try and facilitate you in doing that.”

Yesterday Tánaiste Leo Varadkar said the government is looking at giving workers a right to request to work remotely.

He said this does not necessarily mean they would have to be allowed to work from home, but it would be a legal right to make the request. 

So let’s look at your current rights. We spoke to employment law solicitor Richard Grogan about the barriers to remote working, both for workers and their companies.

Does my employer have to let me work from home if I want to?

In most cases, they don’t.

Grogan said some contracts may provide for flexible working, but most will state that you will work at a location and if the employer says that is their office then you are required to work from there if you want to get paid.

Even if you decided not to go in and fully and adequately completed all of your duties for the day from home, the employer would still not be legally obliged to pay you. 

And of course if your job requires you to be at the workplace in order to carry it out – such as factory work or retail – it would not be possible to work from home. 

Why wouldn’t an employer want to let workers do their jobs from home?

There are genuine problems with working from home. Companies may not have proper mobile IT, the laptops staff are using may not have proper security, there could be huge GDPR and security breach issues. 

“Say if you’re an accounts person, you may not have the protections on your laptop to allow you access to the accounts,” he explained. Issues can also occur if an employee is viewing personal documentation in their homes that could be seen or accessed by the people they live with.

“Obviously we all understand the health imperative to work from home but there is also a knock-on effect on other workers,” Grogan said.

“If businesses have people at home for the next six weeks, the canteen staff are gone, the cleaner who cleans every day is not needed and is now out of a job, the person who works as a barista in the coffee shop down the road has no customers.”

Grogan said companies also have to look at their exposure in terms of insurance. They are obliged to provide a proper workplace with, for example, a sufficient desk and chair in an office setting. If they are unable to provide a similar set-up in a person’s home, they could be open to claims if an employee develops back problems. 

“Litigation solicitors will be looking at what claims workers can make, if somebody has an accident at home during work hours and there was no risk assessment, it could cause an issue for the employer.”

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Would the Tánaiste’s idea of a legal right to request working from home make a difference?

It’s unlikely, Grogan said:

“If he’s going to bring it in he better provide smelling salts to every employment lawyer in the country because they’ll need them to get off the floor laughing. It’s incredible to give someone the right to ask for something. You can already do that.”

Workers can ask to be allowed to work home and while there is no obligation to consider or grant the request, thousands of employers across the country have facilitated remote working. 

Grogan said giving people a right to ask to work from home without also giving them a right to work from home would be “pointless” and will lead to people believing they have rights that they do not actually have. 

“For it to be serious, there’d have to be a whole mechanism to work out what circumstances it is ‘possible’ for an employee to work from home and then you’d also have to indemnify employers.

“And you’d still have the GDPR issues and the security issues and the rest to contend with. If the employers were to be forced to do it, they might look at it and think it’s just not possible and lay those people off instead.”

Grogan said many companies who moved to remote working during the first lockdown were “just making it work short-term” and do not have a longterm plan worked out. He said it would be more helpful for employers and workers if the government gave detailed guidance and more practical supports to facilitate longer term flexibility.

If the country does move to Level 5 next week, the advice will be to work from home unless it is for work in health, social care or other essential services and cannot be done from home.

While this is stronger advice than at Level 3, some companies – particularly those who had issues with remote working earlier this year – may still decide to tell their employees to come to work and if they want to get paid, those workers will have to turn up. 

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