With the future so uncertain as a result of the global turmoil caused by Covid-19, it is now more important than ever to consider what the future holds for the workplace. Workplaces come in many different forms, whether that be the traditional office setting, a construction site, a specialist workplace, or what has become necessary to so many, the home office, write Sandra Masterson Power, Partner and Head of Employment and Benefits and Paul Gough, Associate specialising in employment law, at Beauchamps.
As workplaces adapt to the current challenges and the specific requirements, the question arises as to whether existing legislation is fit for purpose and whether employers and employees are adequately prepared for a changed way of working.
Most employers will have already taken significant steps to address the requirements placed on them and their workforce by Covid-19, which have been addressed by Beauchamps in recent posts on our website, including employers’ health and safety obligations, practical steps to be taken and the need for increased and better communication with employees.
However, on the broad assumption that the threat of Covid-19 is something we will all have to work alongside for some time to come, numerous challenges are thrown up that as yet do not have clear answers. For instance, employers evidently now have to take an even greater interest in the health of their workforce when entering a communal workplace. To assess whether an individual employee is able or suitable to return to a communal workplace, employers are potentially opening themselves up to issues of discrimination, if they base this solely on medical fitness, under the Employment Equality Acts 1998 to 2015.
In addition, there are reports of a growing body of evidence that Covid-19 may have long-term effects on the health of some people who have been infected with the virus. Employers should familiarise themselves with their obligations to employees with disabilities, which could include “long Covid” sufferers. Where an employee suffers from a disability which compromises their ability to work, the employer is obliged to provide reasonable accommodation to that employee to enable them to participate in the workforce. These measures could include reduced hours, working from home or part time working.
Data Privacy Concerns
Equally, with the need for systemic tracking and tracing of the spread of Covid-19, there are new considerations around employees’ privacy and data protection, which will change the relationship and flow of sensitive information between employees and employers. The imperatives for employers of providing safe working environments for their staff challenge existing concepts of the responsibility between employee and employer with regards to sensitive information. Importantly, there are questions around the responsibility of an individual employee to be transparent with their health. Employees should be reminded that not only is it in the interests of their co-workers and their families to disclose any possible contact with the virus, under the Safety, Health and Welfare at Work Act, employees also have an obligation to protect their own safety and health, as well as the safety and health of their colleagues and failing to disclose exposure to the virus may breach that obligation.
The Data Protection Commissioner has stated that “data protection law does not stand in the way of the provision of healthcare and the management of public health issues; nevertheless there are important considerations which should be taken into account when handling personal data in these contexts, particularly health and other sensitive data.” While the virus remains in circulation employers will be faced with the challenge of balancing the individual personal rights of their employees against the right of their employees to a safe working environment. This will necessitate ensuring that the use of personal employee data by employers does not go further than is necessary to protect these interests.
It is not just issues directly associated with the physical working environment that are being altered by Covid-19. The future of work in Ireland, which has increasingly moved towards more family-friendly working practices, as demonstrated in proposals contained in the new coalition government’s Programme for Government, is now being challenged due to the realities of childcare in a fluid and uncertain working environment. While there are challenges ahead around children returning to school and the spread of infection, parents and guardians are required to be adaptable in their approach to childcare to accommodate the uncertainties of childcare, schooling, as well as their own work requirements, whether they are in a communal office or working from home. Employers and employees should begin planning a long-term approach for possible planned and un-planned school closures if the virus is discovered in a school or childcare facility. If an employee is not ill but is unable to attend work, then there is generally no obligation on an employer to pay the employee during that time.
Programme for Government
Putting aside the various issues caused by Covid-19, the new coalition’s Programme for Government contains a broad commitment to “support remote working” as part of the proposals to deliver a “better life for all”, with policy proposals such as a commitment to invest in broadband nationwide and changing tax arrangement to encourage working from home, that may also have a significant impact on the future of work in Ireland. Tied to this broad objective is wording around a “better work-life balance” and a “right to disconnect” – how these policy objectives are realised is significant and indicates potential for considerable change in the future of work in Ireland, with all the likely legal considerations.
Employers are having to address novel and unique situations regarding their workplaces. Much of the current legislation regulating working conditions was put in place over twenty years ago, long before innovations that enable working from home, and certainly was not drafted with the unique circumstances of Covid-19 in mind. The test for employers is to manage employees within the terms of existing legislation in these exceptional times. Our team has addressed these concerns with employers since the commencement of the pandemic and continues to provide a solutions-based approach for clients. We are also working with clients to plan for future working, whether that involves planning around Covid-19 or putting in place protocols and arrangements for working from home, and we will be monitoring the rollout of the Programme for Government with interest.
Sandra Masterson Power
Partner & Head of Employment, Beauchamps
DD: +353 (0) 1 4180985
Senior Associate, Employment, Beauchamps
DD: +353 (0) 1 4180974