Workers refusing to return to the office face dismissal

Work performed at home brings the same onerous health-and-safety obligations for employers as those performed in the workplace, a Mason, Hayes & Curran (MH&C) LLP employment law webinar heard yesterday (9 February). 

There is no distinction or lesser obligations under the 2005 act, partner Melanie Crowley told the webinar.

MH&C has been flagging to employers that, now the emergency stage of the pandemic has passed, the health-and-safety burden on employers is no less than if the worker were back in the office.

Equipment

“You have to ensure that your employees have the right equipment and the right set-up,” Crowley said.

She added that GPs are seeing an increase in soft-tissue injuries because of workers with poor ergonomic set-ups.

In a recent court case in Germany, an employee who slipped while walking down a spiral staircase in his home was found to be in a ‘place of work’ and, therefore, covered by a workplace compensation scheme. 

This shows at first-hand how the home can become a place of work, with the trend towards permanent remote working, the webinar heard.

Clear responsibility 

Employers have a clear responsibility to perform a physical risk assessment, and write a safety statement, even including the front steps, heating, windows, and so on. 

“We have settled for something shy of that because it’s reasonable in the [COVID] circumstances, although not perfectly in compliance with health-and-safety legislation,” said Melanie Crowley.

Employers should take positive steps, and make reasonable efforts, although they are not required to set everyone up with a ‘beautiful office’, responded Connolly.

If someone is sitting on the edge of a bed, that’s not acceptable, he pointed out. The right chair is a basic starting point.

“If you are defending your case, what is your defence going to be?” he asked.

“You must be proactive,” he added.

In planned remote work legislation, the employee will identify their workspace and do an assessment of it. 

Confidential documents

Employees should have strict instructions as regards the printing, dissemination, and ultimate disposal of confidential documents when working from home, the webinar heard.

This is particularly the case, given the higher current turnover of staff in workplaces.

Employees should be told to act in a prudent manner, and close laptops when they finish work.

“The temptation to [use documents to] assist you in the next job has never been as great,” noted MH&C partner Ger Connolly. 

It is not unreasonable to expect that sensitive papers should be brought back into the office for shredding, the webinar heard.

Applications for long-term remote working post-pandemic will have to be accompanied by an assessment of the proposed workplace, with photos documenting the nominated working area.

Where employers have shut up shop and closed their offices, this will need the agreement of employees. Failing that, redundancy may be on the cards.

Failing that, redundancy may be on the cards.

On the other hand, MH&C has dealt with cases where remote-working employees have refused to return to the office, and dismissals have resulted.

Rights

Offshore working introduces complex jurisdictional questions regarding tax and employment rights.

Some remote workers have asked to cease paying Irish PRSI, and instead to pay social insurance in the jurisdiction in which they are physically working. 

Wherever the employee lives yields employment rights in that country, Ger Connolly explained. 

But Irish companies could end up being sued in that jurisdiction, because they allowed the employee to work offshore. “Your generosity will come back to bite you, maybe at a later stage,” he warned.

Employers may also run into taxation problems if the employee is no longer tax resident in Ireland.

Tax residence

“Are you paying the wages correctly – a company may inadvertently create a permanent tax residence in another country, which affects its whole structure,” he warned.

While employers were relaxed and generous about people moving ‘home’ during the pandemic, for several reasons workers may now be asked to come back in, he said.

Administrative and taxation issues, as well as the fear of being sued in another jurisdiction, may bring back ‘old-school’ offices, where everyone is under the one roof, the webinar heard.

Crowley pointed out that, in December 2020, many tech companies insisted on Irish residence for all those reasons, and did it with some success. There were some dismissals along the way, however.

The legal advice to employers has been to invoke the disciplinary process if an employee fails to disclose their location, or refuses to return to the office.

“There is nothing wrong with asking a person to come back to Ireland. It may be the end of the working relationship, but there's nothing wrong with it,” said Ger Connolly.

Lawyer Jessica Bielenberg added that employers might find that, if they took too hard a line, or were too rigid in their decision-making, employees ultimately might vote with their feet, with a resulting loss of talent.

Employment contracts will generally state that the workplace is the office, and an employer can simply say ‘we want you in this specific work location’. 

However, bosses are taking a chance that the employee won’t move on to a more flexible job. 

Employers should be wary, also, of making different arrangements for different sections of the workforce.

Discrimination risks

The legislation appears to be stacked in favour of the employer, but there are discrimination risks with individual arrangements, Crowley said.

Remote working may also turn out to be a gender issue, since women tend to be the primary caregivers in the home.

And employee relations could become tense if one worker is granted remote working and another refused, the webinar heard.

However, any remote-working policy should have an in-built review mechanism.

“Business needs will change, and you need to keep as much control as you can,” warned Jessica Bielenberg.