Hybrid working is a bit like the emperor’s new clothes. It’s been so widely hyped that those who are not 100 per cent in favour have been reluctant to voice dissent. Scratch the surface, however, and there is a whole cohort of managers under pressure because their organisations are still on such a massive remote work learning curve that they’re trying to run their teams and manage people’s expectations without a rule book.
Some of the problems arising as hybrid beds down might seem petty, but poor etiquette around space sharing is one of the things that’s beginning to grate.
“I deeply resent coming in to a desk covered with the remnants of someone else’s lunch and the smell of raw onions in our communal locker,” says a recent desk-sharing returnee.
Housekeeping issues aside, facilitating requests for distributed working is currently a major source of stress for business owners and managers alike. The concept looks good on paper. However, it also raises questions about feasibility, practicality and whether a business has the bandwidth to support the structural changes required.
A recurrent theme is managing the expectations of employees who relocated at the start of the pandemic and want to continue doing the same job, but remotely.
“Our biggest client is in Dublin and we are effectively on call if they need us at short notice,” says one senior manager. “Before Covid, there were three people who could step up. Now there’s just me and I can’t be available 24/7. I need to handle this without a blazing row or breaking any labour laws but the others are digging their heels in and don’t want to see it from my perspective.”
Asked how best to deal with issues like this, Síobhra Rush, an employment partner and head of the Dublin office of legal firm Lewis Silkin, says managers need to be mindful of the fact that if an employee has more than one year of service, they have the protection of the Unfair Dismissals Acts. This means there must be a fair reason to dismiss and most importantly, a fair process.
And even outside the disciplinary side of things, there is always the risk that employees you want to retain will simply choose to leave.
Rush adds that this problem is not going to go away as proposals are in place that will allow employees to request remote and flexible working arrangements by the autumn.
Potential grounds for refusal are included in the draft legislation and include the nature of the work not allowing it to be done remotely, an inability to reorganise work among existing staff, a potential negative impact on quality of business product or service and an inordinate distance between the proposed remote location and where the employer is based. That said, an employer will need strong evidence to back-up its position if any of these provisions are to be invoked.
“Having a genuinely objective reason to refuse remote work does not remove the requirement to follow a disciplinary procedure in dealing with the matter as a disciplinary one,” Rush says.
“Potential problems should be tackled immediately as the longer an employee is permitted to work remotely full-time after the lifting of Covid-related public health restrictions, the stronger their case will be to argue that their terms and conditions of employment have changed with the acquiescence of their employer.”
Rush adds that in this type of situation, an employer needs to take steps to reduce the risk of a successful unfair dismissal claim. For instance, are there any potential discrimination issues to take into account when asking an employee to return to the office, such as a disability or having recently given birth?
Once this is ruled out, the place to start is with an employee’s employment contract to ensure their place of work is stated as the office location in Dublin or Cork for example.
“If this is the case, the employee should be informed in writing that they are required to return to the location in accordance with their contract,” Rush says. “However, it would also be prudent to engage in some form of consultation and explain why the remote work location can’t be supported. For example, clients looking for more face-to-face meetings.
“On the assumption that the employee does not engage they should be advised that continued refusal may result in disciplinary action up to and including dismissal. This is going to be a difficult process for both sides so it’s important that the employer follows the disciplinary process correctly and does so in a fair manner compliant with Irish employment law at all times.”
Rush adds that where employees have been working from home since the beginning of the pandemic and both sides now want to implement a hybrid working model, it is prudent to start thinking about formalising the process.
“Many employers are implementing hybrid working without making formal contractual changes for the time being while they gauge whether or how well it works. But if it’s going to stay then it would be advisable to record this as a variation to the employees’ contract of employment.
“This is not a change that can be made unilaterally. The written consent of employees needs be sought through engagement and consultation,” she says. “In terms of implementing the change, it can be done by way of a side letter or addendum to the contract.
“The employer may also seek to reserve the right to request an employee to attend work at the business location when required, depending on business needs.”