Return to work issues must be reviewed by all parties, urges legal expert

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Employers need to consider potential employee relations and discrimination issues in how they handle any staff requests to continue working from home, says a leading employment law expert.

Linda Hynes, partner at Lewis Silkin Ireland, advises employers to review existing laws around workplace issues, while awaiting new legislation that will bring greater clarity around the relevant rights and obligations of all parties.

In reality, however, well in advance of last week’s changing Covid guidelines and easing restrictions, many companies were already on the move back to work. People are already returning to work on a phased basis.

“Many of our multinational and technology clients have had to deal with this issue already,” said Linda Hynes. “They’ve done the staff surveys, they’ve reviewed the workplace safety protocol and changed their meeting and office spaces.

“Employers should try to have constant communication and engagement with their employees. The key for employers is to act reasonably and consistently. People will apply for flexible and hybrid work options; employers should be conscious of the need to deal with each request consistently.”

There is no legal framework for employees to request remote work. In announcing the easing of restrictions, the Tánaiste Leo Varadkar said employees would be given an internal right to appeal any refusal to a request to continue working remotely.

It is expected that the new legislation would follow a similar model to the UK, where employers are given criteria to rely upon in refusing an employee’s remote working request. These factors include an excessive burden of cost, any detrimental impact to the quality of work or quality of customer service etc.

Many employers and employees are already communicating around what work model works best for all parties, while giving due consideration to the needs of the business.

While awaiting new legislation, employees should closely read their work contracts and not presume any new rights that they have yet to gain. In many cases, employers are within their rights to insist on a return to the workplace.

Some workers want to know if employers in Ireland will have the right to insist that their workers return to the office?

Linda said: “That will depend on what’s in their contract of employment. Employment legislation in Ireland requires employers to furnish a statement of terms and conditions. Most employers provide a detailed contract that should specify the place of work.

“If that place of work is the employer’s business, then strictly speaking they could insist on a return to the office. But the Work Safely Protocol, introduced during the last two years, does encourage consultation with employees.”

Some employees are asking employers now for flexibilities that may or may not be included in future employment laws. Linda says employees can apply for flexibility now; even if their request is rejected, they can reapply when the new rules come in.

“We are also hoping to see new legislation which will allow employees the right to request remote or hybrid working. But, yes, employers can insist that employees return to work. After the last two years, however, it will be quite difficult for employers to insist.

“If you brought this to the extreme scenario of an employer was insisting on a return to work and the employee was pushing back, then the employee would need to use the internal grievance procedures and go through those before perhaps ultimately resigning and beginning constructive dismissal proceedings.”

Just as with existing legislation for parental and carer’s leave, employees cannot be punished for exercising their rights. An employee’s successful legal action on the grounds of discrimination leading to constructive dismissal can see them gaining up to two years in remuneration, not to mention the bad publicity.

Employers, however, will also be keenly aware of talk of the current era as that of ‘The Great Resignation’ and ‘The War for Talent’, with surveys showing a huge desire among employees to change jobs.

What will be interesting is how these various positions play out in reality. How many employees will actually change jobs if their demands are not met? How many employers will willingly let them go? Can the employer cherry-pick among employee requests?

When looking at a series of remote or hybrid work requests, what factors does the employer need to consider before making a decision? And what does the employer need to consider when communicating this decision to the employee?

“It would be very unwise for an employer to issue a blanket call to return to work,” said Linda. “People are reviewing their lives and lifestyles of the past two years, looking at their commutes and their work-life balance. Most people in an office environment are hoping for some form of hybrid work model.

“Some employers, however, may have been doing everything possible to just about keep the ship afloat for the past two years. Some will want people to get back into the office, to get people back for the collaboration and innovation that happens when people work together.

“Many employers may need to move on from just surviving and to get back to business growth. It will be a matter of discussing between employers and employers to find a balance that is acceptable to all parties.”


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