New Ways of Working

The Irish government announced in March 2021, as part of its National Remote Work Strategy, that it plans to provide employees with the right to request remote working. This right is now likely to be introduced in mid 2022. In line with most Irish employment protections, it is anticipated that this right will be limited to employees only, and so will not extend to independent contractors or “gig” workers who are not employees.

This new right will likely limit when an employer can refuse a request to work remotely and may also give employees a right of action against their employer where such a request is unreasonably refused. Details of the grounds on which an employer may refuse a request for remote work have not yet been announced, nor have the potential consequences for refusing the request. However, it is expected that a similar approach will be taken to that in the UK, where the right to request flexible working – and the grounds on which such a request can be refused – has been in place since 2003.

In the meantime, the government has introduced guidance for working remotely (see here) and a remote working checklist for employers (see here).

The Data Protection Commissioner has issued guidance on the protection of personal data when working remotely (see here).

The key risks identified relate to protecting and preventing access to laptops, USBs, phones, tablets and other devices; emails; using unsecured networks to transmit data or to access company networks; and ensuring the security and confidentiality of hard-copy documents.

Employers should update data protection policies to take account of remote working and should also consider any data protection issues that may arise from an employee moving to work outside of Ireland.

Employers must have regard to an employee’s right to privacy and data protection rights. They must have a legal basis under GDPR for processing employee personal data in that manner and must also be able to demonstrate that the monitoring in question is a necessary and proportionate action to achieve a legitimate aim; and that there is no less intrusive alternative way of achieving that purpose.

Guidance from the Data Protection Commissioner has focused on employers being transparent regarding the measures they adopt, including the purpose of collecting any personal data; minimising the amount of data that is processed; and preserving the confidentiality of any such data.

Unless provided for in an employment contract, there is no mandatory obligation on an employer to provide particular work equipment (save as part of its ongoing health and safety obligations), to pay a working-from-home allowance or to reimburse employees for costs associated with remote working.

The Irish tax authorities permit an employer to pay an allowance of up to €3.20 per working day tax-free to employees who are working from home to cover expenses such as heat, electricity and broadband. Any amount paid over and above this permitted limit of €3.20 is fully taxable as income. Where no allowance is paid, an employee may recover up to 30% of the cost of their broadband, and up to 10% of their electricity and heating costs, directly from Revenue, the Irish taxation agency. It has been announced that up to 30% of electricity and heating costs may be recovered from 2022 onwards. However, only costs that are attributable to working days are recoverable.

Equipment that is provided by an employer to enable an employee to carry out his or her work (eg, laptop or monitor), and which is used by the employee primarily for work purposes, is not taxable as a benefit-in-kind. Vouched expenses that are incurred wholly and exclusively in the course of an employee’s duties are not generally subject to tax, but this exemption is applied on an extremely limited basis.

Employees working remotely outside Ireland may create expensive tax liabilities for themselves and their employers. It’s important to be aware of these before any long-term decisions are made.

The foreign country in which the employee is working may seek to tax some or all of that employee’s income from the employment. This is based either on the fact that a substantial number of days have been worked in that other country or in some cases on the basis that the employee has become a tax resident there under local law. Further, social security liability may accrue (which is generally assessed separately from income tax).

The main concerns for employers will be whether there is an obligation to operate local payroll withholding and whether local social security rules add significantly to the wage bill. The rules vary widely between countries and, unfortunately, there is no “one size fits all” approach to managing this issue across multiple jurisdictions.

Employers will also need to consider two corporate tax risks. First, an employee working abroad may in some circumstances constitute a permanent establishment of the employer in that other country, exposing part of its profit to corporate taxes there. Second, if an Irish company has directors based abroad, there is a risk of the company also acquiring corporate residence in another country.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee. However, such a reduction could be agreed upon between the parties as part of an agreement, for example, to permit the employee to work remotely permanently.

Employers have an ongoing legal duty to provide a safe working environment. The government has issued detailed guidance setting out the minimum public health measures required in every place of work to prevent the spread of covid-19, to facilitate the re-opening of workplaces following temporary closures, and to provide for the ongoing safe operation of those workplaces.

This is contained in the Work Safely Protocol updated in November 2021 (see here) and provides guidance on ventilation and vaccinations as part of the range of measures to prevent the spread of COVID-19 as well as information on how to approach the use of antigen testing in the workplace.

Realistically, no. There is no specific prohibition on employer-mandated vaccination in Ireland, but it will be difficult for employers to justify making vaccination mandatory under existing Irish employment law principles. Employers can, however, encourage employees to get the vaccine.

Employer-mandated vaccination presents several significant risks to employers: breaching the implied term of trust and confidence in employment contracts, giving rise to constructive dismissal claims; legal arguments that the requirement is an unconstitutional encroachment upon an employee’s private life; data protection issues; and discrimination risks.

Current government guidance, as set out in the Work Safely Protocol is that the decision to get a vaccination is voluntary and that workers should therefore make their own decisions in this regard.

However, the guidance does recognise that there may be certain circumstances where it is deemed that an unvaccinated worker is not safe to perform certain work tasks and in such circumstances, the employer may have no option but to redeploy the worker to another work task. Any such decision needs to be agreed upon between the employer and a medical practitioner in consultation with the worker.

Where employers can objectively justify restricting access on that basis (e.g. to maintain a safe working environment), the risk of such a restriction being successfully challenged is limited. However, the processing of this data may be problematic from a data protection perspective.

In any event, it does not confer any particular advantage to adopt this approach given that the current official guidance is that normal workplace “covid-secure” measures (eg., mask-wearing and social distancing) will remain applicable for all employees, irrespective of vaccination status.

Not yet. At present, indoor dining is confined to individuals who can provide proof that they are fully vaccinated or that they have recovered from COVID-19 within the previous six months. However, this restriction only relates to customers rather than staff, and so there is no obligation on restaurant or pub staff to be fully vaccinated to gain access to their workplace.

Information about a person’s vaccination status is special category personal data for the purposes of the GDPR. It represents part of their personal health record and is afforded additional protections under data protection law.

The Data Protection Commissioner has issued guidance stating that the processing of information about an employee’s vaccination status is unlikely to be necessary or proportionate in most employment situations (see here), except potentially in industries which have a very obvious, urgent and direct safety need (such as the provision of frontline healthcare services) or the Irish government introduces new measures requiring employers to process this data.

Employers have an ongoing legal duty to maintain a safe working place and environment. Responsibility for health and safety at work rests with the employer, whether or not that work is being done at the worker’s home.

Employers need to consult with their employees to assure themselves:

• that the employee is aware of any specific risks regarding working from home
• that the work activity and the temporary workspace are suitable
• that they provide suitable equipment to enable the work to be done
• that there is a pre-arranged means of contact.

The Health and Safety Authority has produced helpful guidance and information on the health and safety issues relating to remote working, which is available here.

The pandemic has not directly impacted employers’ obligations beyond the physical workplace from a health and safety perspective, as the legal duties and responsibilities that apply to employers predate the pandemic. The difference is that these issues have assumed a higher level of attention due to the wholesale adoption of remote working as a result of the pandemic.

No, except for particular categories of mobile workers (for example long-distance drivers) who have the benefit of specific protections when it comes to working hours and rest breaks.

When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

In April 2021, the “Code of Practice for Employers and Employees on the Right to Disconnect” was released by the Workplace Relations Commission, which created a new right to disconnect comprised of three elements: the right of an employee to not routinely perform work outside normal working hours; the right to not be penalised for refusing to attend to work matters outside of normal working hours; and a duty to respect another person’s right to disconnect.

Failure to follow the code will not be an offence, although Irish employment legislation provides that in any proceedings before a court or the Workplace Relations Commission, a code of practice will be admissible in evidence. Any provision of the code that appears to be relevant to any question arising in the proceedings will be taken into account in determining that question. Given that the code is not directly enforceable, it is more akin to guidance that employers ought to be aware of, as opposed to a statutory prohibition on working outside of normal working hours.

There has been no change to underlying employment legislation or rights, save for the suspension of the right of an employee who has been temporarily laid off for more than four weeks to claim an entitlement to a redundancy payment. This suspension, introduced as part of a suite of emergency measures at the outset of the pandemic, has now come to an end.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee.

No specific, coordinated actions have been taken other than normal day-to-day activities. The government’s Work Safely Protocol which deals with the steps that employers must take to facilitate the reopening of workplaces, provides for the appointment of a Lead Worker Representative, whose role is to work together with their employer to assist in the implementation of and monitor adherence to public health measures to prevent the spread of covid-19 in their workplace. The Lead Worker Representative does not need to be a member of a trade union or any other worker association to carry out the role.

No, unless there is a collective bargaining agreement in place that imposes such a requirement. Ireland operates a voluntarist approach to trade union recognition, which means that there is no mandatory recognition of trade unions, and so they have limited (if any) influence in non-unionised workplaces.