Introduction

Eight months after the introduction of more permanent hybrid working arrangements, Tina O’Sullivan, Senior Associate and Megan O’Connor, Associate in the Employment, Pensions and Benefits Group at Matheson, reflect on some of the key legal and practical challenges arising from this new workplace model and what measures are being taken by employers to address such challenges.

Key Issues

1. Performance Management

The onset of COVID-19 pandemic forced many businesses to move to a "work from home" where possible model almost overnight.  As a result, taking a "hands on" or more direct approach to managing employee performance took a backseat for a significant and unexpected period of time.  Despite this sudden change to the more "normal" work environment, the principles of good performance management continued to apply to employees regardless of the difficulties triggered in reviewing and managing performance remotely.

In the (almost) post-pandemic era, employers are beginning to rethink their performance models to cater for a hybrid workforce; in particular revising the appropriate policies for dealing with the area of performance management.  Employers are also investing significant time and resources in the upskilling of managers so as to ensure they have the necessary skills to support and supervise remote teams.

2. Core Working Days / Anchor Days

One notable consequence of the pandemic era is the reluctance certain employees are experiencing in returning to the physical office/workplace, having worked from home for a significant period. While most employers recognise the new dawn of hybrid working and acknowledge that a return to office-based work full-time is no longer a "given" in these current times, the other side of this coin reflects a genuine concern in relation to sustaining team performance and culture, coupled with the development of more junior employees, in the absence of regular in-person office experiences.

In an effort to address their concerns, the majority of employers are pivoting and seeking to introduce "core working days" – essentially requiring a specified number of days per week (2-3) to be conducted at the office/workplace with the balance to be worked from home.  Further, many employers have also introduced the concept of a team 'anchor day' requiring all employees in a particular department/team to be present in the office on the designated weekday. These new working models seek to strike a delicate balance between encouraging office attendance to facilitate team building and junior development, whilst also recognising the flexibility sought in assuring a degree of opportunity to continue to work from home.

3. Health and Safety

The introduction of the Covid-19 pandemic triggered an unprecedented review of employers' approach to health and safety measures within the workplace. While the urgency of the pandemic initially resulted in a significant number of employees working from home (somewhat unexpectedly and essentially "overnight"), as time has passed, employers have recognised the need to update their health and safety policies to comprehensively reflect remote working arrangements – coupled with enhanced approaches to limiting the scope for COVID-19 to spread within the physical office environment to the extent possible. In the (almost) post-pandemic era, employers are revising their health and safety policies to take into account the physical and mental health concerns that attach to remote working environments, communicating employee health and safety obligations and providing training in managing safety issues while working remotely.  From a practical perspective, employers are carrying out virtual inspections, working from home checklists, and consultations with employees in respect of the office set-up, etc.  While not legally required, a number of employers are also providing employees with suitable equipment to ensure employee health and safety and increase productivity.

4. Working Hours

Given the sudden switch from "presentism" and office attendance to almost solely working from home "unsupervised" during the pandemic, many employers were concerned about the lack of visibility in relation to their employees' approach to working hours.  Today, and most likely as a result of the blurred lines that were evident between working and home life hours during the pandemic period, many organisations are beginning to recognise the impact that the "always on" culture is having on employees.

In order to address this, employers are now focusing on setting clear expectations in relation to the level of work required of employees.  As the hybrid working environment allows employees to work outside of conventional working hours, we are seeing a diversification in the approach to working hours – with many employers seeking to facilitate more flexible working hours to cater to employees' work/life balance. For example, growing number of employees updating their signature blocks in order to address any assumption that employees are required to replicate their colleagues' working hours, for example, "I am sending this email during my working hours but, I do not expect a response or action outside your own working hours".  Alternatively, some employees prefer to include the level of urgency in the email subject line or avail of the delay email function.

5. Employee Wellbeing

As outlined above, the 'new normal' has revealed a hurdle for employers to overcome in managing employee wellbeing.  Employers are adopting effective interventions for a blended way of working by introducing mental health awareness programmes and wellbeing / health initiatives in the workplace.

6. Tax

COVID-19 opened the door to Irish employers facilitating remote working of their employees from oversees destinations.  Early indications are showing that some employers are opting to introduce this on a permanent footing by allowing employees to work abroad for up to four weeks each year. We provided a more detailed overview of the tax considerations associated with employees working abroad in September 2020 – accessible here.

7. Confidentiality / GDPR

As remote work environments vary and are more difficult to secure than a traditional office, employers are faced with the challenge of ensuring confidentiality of sensitive commercial information and personal data.  In order to address these concerns, employers are updating their hybrid working policies and procedures to confirm employee obligations relating to data security while working remotely.

Conclusion

While the COVID-19 pandemic created an initial wave of uncertainty in all aspects of our personal and professional lives, what is abundantly clear is that the key word when it comes to the future of work is "flexibility".

However, it is important to preface that the current form of hybrid working has been developed in a vacuum of any legislative framework for modern working arrangements post- COVID-19.  Given that the Irish Government are likely to push forward with the enactment of the Right to Request Remote Work Bill 2021 and Work life Balance and Miscellaneous Provisions Bill 2022, these new hybrid arrangements may again need to be adapted as the evolving flexible working legislation takes shape.

This article was authored by Tina O'Sullivan, Megan O Connor and Trina Dzidonu in our Employment, Pensions and Benefits Group, Vahan Tchrakian in our Tax Department and Carlo Salizzo in our Technology & Innovation Group. Please get in touch with Tina, Megan, Trina, Vahan, Carlo or your usual Matheson contact should you require further information in relation to the material referred to in this update.  Visit the Employment, Pensions and Benefits page at Matheson to stay up to date with the latest updates, articles