Remote working requests during COVID-19 - permanent or temporary basis?

Posted in : Seamus Says - Employment Law Discussion on 3 December 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Remote working; COVID-19

Scott: Would you advise that we agree to any request for remote working to be on a temporary basis rather than permanent, as we don't know what might happen in 2021? So I suppose this goes back to the flexible working request, and unless it's made temporary, it becomes permanent. I think the questioner here is saying,

"Should we just say, 'Look, we're not going to agree to any permanent change because we simply don't know what's happening at the moment'?"

Seamus: Well, I suspect that that probably is the best approach at present. It's a good question, but I think that ultimately that's a decision for the business. I think if the business operates on the basis where it requires bums on seats, then it may not be prudent to grant a permanent working-from-home request until matters settle down and the business is clear about its own steps going forward.

On the other hand of that, my thoughts are that it may be there's no reason why the business couldn't facilitate a permanent request if it is a matter that's a routine matter that individuals work from home on certain days. So I think it's about an assessment of whether or not COVID-19 is having that impact upon the business.

I think probably the prudent approach would be to look at it cautiously and perhaps say, "Look, we can facilitate this at present, but we're going to have to review it".

 There are lots of people that are working on a sort of roller basis at the minute where maybe they're doing one day a week in the office. Certainly, a lot of the sort of professional services that I deal with and that have spoken to have this roller whereby they maybe have staff two days a week in the office, three days at home. And they work on a flexibility of what's required in terms of in and around Halloween, whenever schools are closed again, and things like that.

But I think look at the matter just on the basis of where we're at. It's back to that point about "Will we require points in the contract or clauses in the contract to deal with COVID and the risk of further pandemics?" I think that we need to see what the lessons are coming out of this approach. I think we need to see . . .

I mean, it was interesting. Last night, I was watching TV and the vaccine, at this point, they don't know how long the vaccine actually . . . the immunity lasts for, whether it's going to be for a number of months or for a number of years, whether you're going to have to get an injection every year. So I think we're a bit early and a bit close to be setting our position in stone on permanent decisions. I think we need to wait to see what develops. And hopefully, the science can help us over the next lot of months.

Scott: Yeah. And those requests for flexible working, Seamus, under the order, there are certain things that employees have to do. So me going to you and saying, "Look, I want to work from home for a bit", or, "I want to work from home from now on", or, "I want to work from home two days a week", that isn't a formal request under the legislation as such because you've got to put forward a business case and all kinds of . . .

Seamus: That's right. 

Scott: As it stands at the moment, most employers, going back to March, they're putting facilities very quickly "Get back to work". I think going forward, and we've discussed this in the past, if it becomes a more permanent situation, and my home because my workplace, then employers have responsibility under Health and Safety legislation apart from anything else. And so, in order to make that permanent, you really have to factor in all those issues there.

And it might just be prudent at the moment to say, "Look, it's too febrile. We just have to think about what's going on at the moment and keep things temporary. We've no problem you working from home. We've no problem with varying hours and such like. But let's just keep it fluid at the moment and see how it works". And that seems to be a sensible approach for most employers.

Seamus: Yeah. I agree. And even from the point of view of . . . I don't think employers have got to the point yet where they can properly assess what they're going to do in the future. I think that we are jumping from a position of back in March saying, "Oh, we'll be back to work by July". Then it was September. Then it was January. And now, realistically, we're all sort of saying that it'll probably be into the autumn before things settle again, autumn of 2021. So we could have a full year of difficulties.

Now, I'm not saying that's going to happen in every single business. It just depends on what business you're in, and it depends as well on how quickly the rollout of a vaccine goes and whether the vaccine is successful also.

There are so many factors. There's complete fluidity at the minute in relation to the whole scenario. I think that that caution is prudent at this time.


This article is correct at 03/12/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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