Legal expert’s answers to key questions on returning to office

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Shared input from employers and employees will be critical to any successful hybrid work model, advises Deirdre Malone, associate partner and head of employment law, EY Law Ireland.

She says employers are seeking advice on the legislation, old and new, which governs the choices many employers are currently already making. Can employers go into an employee’s home to carry out an ergonomic inspection?

What equipment should they provide for the employee and who pays for it? How do they manage travel and other expenses? What are the legal rights and responsibilities for employers and employees?

Here are Deirdre Malone’s responses to some key questions many employers and employees are currently asking around hybrid work models.

How can employers and employees share a positive engagement on the challenges around returning to the office?

Bringing people back to the office is much harder than sending them home two years ago. Employees are raising concerns about in-person interaction. The most frequent questions in the last two weeks are connected to masks and vaccines. Some people want to keep wearing masks, others don’t. Some don’t want to sit next to a person who hasn’t been vaccinated. It’s fraught with emotion and difficult for employers to keep everyone happy.

The key to a successful (and occupied) workplace is proactive engagement with employees and real collaboration on the return to office plan. Go slowly – phase the plan into operation to give people time to adjust.

Employers should ask for their employees’ input into the various concerns they have about in-person working arrangements. The responses can be used to update the business Covid Response Plan and collaboratively set out how these concerns will be addressed.

For small businesses, meet the employees and speak to them, even if that’s an online call. For larger organisations, try small team meetings, or use short online surveys to get people to anonymously share what’s worrying them. This will give employers a feel for the things that matter to employees right now. No two answers will be the same and there is no one size that fits all. Recognise that things have changed for people over the last two years. People had children, got married, lost loved ones. Challenges never anticipated at the start of the pandemic are very real now. The reality is that employers are unlikely to be able to keep everyone happy, but if employers seek solutions from their employees and make them part of the plan, employees will be invested in making it work.

Every workplace must still have a Lead Worker Representative (LWR). Check back in with the LWR and ensure that they still want the role.  Look to the wider team to see if new people want to get involved and bring new fresh ideas to how everyone can start working in the office positively together.

What hurdles do legislators facing in creating fit-for-purpose regulations for new and evolving work practices?

The speed with which the working world changed over the last two years has resulted in employment legislative development that has lacked punch. Legislation is intended to be clear and straightforward, so it isn’t responding well to the need to “pivot” to meet business needs.

Legislators are trying to draft regulations to address the numerous different ways in which employees want to work but it’s impossible to legislate for every eventuality. Last year, the Code of Practice on the Right to Disconnect was published, recognising blurred lines and long working hours, but offering nothing new for employees who had to burn the midnight oil.

This year, we are promised robust legislation to manage remote working requests to facilitate ongoing home working arrangements. The draft legislation has been criticised as flawed. In its current form, employers can refuse requests on 13 different business grounds without needing to justify the basis for the decision. An appeal mechanism to the WRC is procedural only, so fails to offer an employee a real chance to challenge their employer’s refusal.

The spirit of the legislation is right, it’s just failing to deliver a practical document for employers and employees alike. Employers want to know if they can go into an employee’s home to carry out an ergonomic inspection. They want to understand the exact equipment they need to give to the employee and who needs to pay for it.

They want to know how to manage expenses for employees travelling to the office. They are worried about insuring for employees who injure themselves if they trip over a laptop cable. Setting out the reasons why an employer can refuse a request to work remotely is of little assistance. For the majority of employers, remote working is a reality for talent attraction and retention, it’s all the other questions that they want to see addressed in a piece of legislation and there’s nothing coming.

Please amplify your view that employers need to reimagine their existing policies through a hybrid, post-Covid lens.

The Great Resignation has seen more movement in the market than ever before. Employees are moving for a variety of different reasons. Whatever the reason, employers need to find innovative ways to keep their workforce engaged and to attract new talent.

Every employee policy must be looked at with a hybrid/post-COVID lens. For example, does the disciplinary policy address virtual meetings, how they happen and who can be present. How is training completed – and how can employers ensure that those who are working from home are given the same opportunity as those who are in the office.

It is challenging to do a final version of a remote working policy in the absence of the legislation but having no policy in place is riskier. Employers need to establish the rules of engagement for home working. One of the first questions asked at interview in many organisations now relates to the number of days the employee can work abroad each year. This question alone has significant tax and legal consequences.






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