In this month's webinar, Caroline Reidy, Managing Director of The HR Suite and HR and Employment Law Expert discusses the new right to request remote working.

Rolanda:         Good morning, everyone, and welcome to our webinar with me, Rolanda Markey from Legal-Island, and Caroline Reidy, Managing Director of The HR Suite. Caroline is just fresh off from a radio interview, so she is all warmed up and ready to go. 

                        So for anyone who is new to us, I'll just give you a wee short introduction to explain a wee bit about Caroline. She is a multi-talented, I have to say, individual. 

                        She's a past member of the Low Pay Commission and an adjudicator in the Workplace Relations Commission. She has completed a Master's in Human Resources through the University of Limerick. She is CIPD-accredited as well as being a trained mediator. And that's for starters. 

                        Her background is mostly in HR where she worked for the Kerry Group for over 20 years and in the retail and hospitality sector where she was Operations and HR Director of the Garvey Group prior to setting up The HR Suite in 2009. 

                        Caroline speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that that presents for employers and employees. 

                        At this year's Annual Review of Employment Law, Caroline will be speaking on the difference between bullying and management. Effectively, when management isn't bullying, I suppose, is the other way around, because people often feel that. 

                        Our topic today is about remote working. And whilst we are waiting for legislation, which is going to create a legal right for employees to request the right to work remotely, a lot of employers are having to deal with that at this stage. In today's webinar, Caroline will provide some guidance on how to deal with those requests at this stage. 

                        As you can see on your screen there, at Legal-Island we also have an eLearning Course that sort of focuses on the issues around motivation and engaging remote workers. Because there is a real concern, I suppose, coming up now with the whole proximity bias thing. If you're in the workplace, that's great. If you're not in the workplace, you get forgotten about. So that eLearning Course is available. If you want to find out a wee bit more about it, if you want to type in yes in the question box now, somebody from our eLearning team will be in touch with you. 

                        Now, as I said, today's webinar is about how do you deal with those requests for remote working at this point in time? And yes, there will be legislation that will say things like what length of service you need to have, what grounds an employer could refuse, etc., but we don't have that at this stage. So at the end of the day, how do you deal with remote working requests at this point in time, Caroline?

Caroline:         Okay, great. Thanks, Rolanda. Good morning, everybody, and thank you all for joining this morning. It's a Friday, so thank Crunchie it's Friday. And it's a long weekend, so we've lots to be thankful for today. 

                        What I'm going to do is . . . As Rolanda said, we really are at a stage that most organisations have drafted their policy in relation to what the new return to the office will look like in terms of remote working and the hybrid working policy, or the combination of both. So what I was going to do was run through a lot of what we know already to be the case in relation to the new statutory instrument that's going to be introduced. 

                        And we also know that that Code of Practice that's being introduced is exactly that. It's a best practice code. So it's going to be something that you're going to be encouraged to avail of, but it's not going to be a legislative framework. So that's important to remember. 

                        And I would say at this stage, most of you have had the requests because most people have transitioned. Some organisations are saying and following the government guidelines this week where spring next year will be when the full return happens back to normal. So, again, I think it's very timely that we're looking at this whole area this morning because I really don't think we can really wait much longer on that basis. 

                        So I'm going to start and take you through the consultation document that the government have produced. And basically, what that has done is all of the different industry stakeholders have been surveyed, and they've been requested to give some feedback as to what they think the new statutory instrument around the right to request remote working should cover. 

                        I'm going to cover what the key elements of this were, because I think this will give you hugely helpful guidance in relation to your policy, and definitely areas that you should consider incorporating into your policy if you haven't done so already. 

                        So the first area to touch on is once you get a request for somebody to apply for remote working in whatever form that is, the majority by miles, 64%, suggested that within one month, you as the employer should go back to that employee and let them know what your decision is in relation to their request. 

                        One month isn't that long, remember. And again, having the criteria in place is really important to make sure that that would take account. So, again, I think that's an important one to be noted. 

                        And in most cases, four weeks' notice also applies to maternity, parental, and adoptive. So I think that one-month timeline will realistically be the timeline required. 

                        The next key consideration is what length of service does the employee need to have before they can request remote working? So when they join, how long should it be? And this question, 167 people gave submissions on this question and 31% were in favour of a one-year timeline, and 25% were in favour of having no timeline. 

                        So, again, what does your policy say in relation to the period of time that you have an entitlement to request remote working within your organisation? Again, I think we should state what the timeline should be. These are all working documents that can be updated, if necessary, but at least, again, you're treating people consistently. 

                        The research and also the feedback from all of our clients is that, particularly for new people, the more they're in the office, if there was no COVID issue, the better at the start. 

                        Particularly for the whole area of induction, training, etc., that would be facilitated in the office as much as possible. I think that's a good caveat and a good consideration. 

                        Remember, for others, it's six months. So, again, you get to decide. The Code of Practice will only be a guideline. But I do think it will be good to put a timeline on it so that people have clarity and consistency in relation to that. 

                        Remember, some jobs, though, people will be employed directly to do remote working, which is perfectly fine as well. But again, just to give that option. 

                        The next consideration is if their request is initially refused, how long should they have to wait before they submit the request again? In 160 submissions that were received, 24% said six months, and 22% said one year. So, again, it's likely to land somewhere between six months and one year. 

                        Personally, I think six months is possibly too short a time. Most organisations, if they review the request, they will be reviewing it for the foreseeable future. And having a request six months later when it takes you a month to consider it, to respond, the time won't be long coming around for that request again. 

                        And remember, if it's a case that you can't facilitate it because, for example, somebody is on maternity leave, etc., you can let them know and they can request it within whatever length of time. So that can be addressed if there are mitigating circumstances. 

                        But in normal circumstances, I think a year is probably the most pragmatic because I think the mitigating circumstances will be taken into account if they are short-term circumstances, which I would consider six months to be a short time.

                        The next key consideration is the importance of carrying out a risk assessment, and that risk assessment of the person's home to make sure that they're able to do remote working in a safe way. 

                        Remember, our obligation spans both in the office and at home to ensure people have a safe place of work. And we need to do that ergonomic assessment to make sure that they have the right desk, they have the right chair, etc., to make sure that they're going to meet that obligation. 

                        So in this scenario, 44% said they weren't confident to carry out the assessment themselves. Thirty-three per cent said they were confident. So it's important that we up-skill ourselves in relation to that guideline. And there are some really good guidelines from the Health and Safety Authority in relation to doing that assessment remotely. 

                        More and more of the new contracts of employment are putting in additional caveat to say, "We may reserve the right that we may have to visit your home to do the risk assessment there". But in reality, I can't see the employer wanting to go to somebody's home, nor can I see the employee wanting to invite the employer in. So I do think that that will be likely to be done remotely. And I think that with technology now and with cameras, etc., that can be properly done remotely. 

                        Remember, it's in the employee's best interest, as well as the employer's, to make sure that they have that safe place of work that we talk about. So, again, I think revisiting the Health, Safety and Welfare at Work Act and your obligations around us to ensure that they have that safe place of work in both home and in work. 

                        I suppose the other challenge that's presenting is that you need to have, for example, the standing desk at home and the standing desk in the office, if somebody needs the standing desk because they have a problem with their back, etc. Again, that's adding additional costs potentially, and that's something that needs to be considered as those requests are coming in, because we can't allow somebody to work remotely unless they have a safe place to do so. So I think that's really important. 

                        The next key area that was covered is the importance of having a policy, and 84% of respondents were in favour of having a remote working policy. So the policy needs to be in place. I would say draft your policy, and then there will only be small tweaks, if any, based on the Code of Practice. 

                        And remember, the Code of Practice is a best practice guideline. It's not essential that you cover everything in it, but it's likely that you will use it for guidance.

                        Next, the reasonable refusal of the right to request remote working. This is one that is going to be kind of the key challenge for employers because, ultimately, your obligation is to provide reasonable grounds in line with business requirements. 

                        So the key things that came up in relation to what could be allowed is poor Wi-Fi, health and safety, it's a client-facing role, data protection, physical nature of the job, under-performance, or cost implications for the employer. So there are lots of grounds that could be required. 

                        But obviously, from a pragmatic perspective, the physical nature of the job or a job that is client-facing most likely can't be done remotely. So they would be making up the majority of the reasons why you might refuse the request of remote working. But remember the importance of consulting and engaging with the employee. 

                        Also, if, for example, the poor Wi-Fi connectivity is an issue, can that be remedied or can that be resolved? 

                        If there are under-performance issues, it shouldn't be a punishment either that somebody is not being given remote working, that as a result of not performing, we're not letting them work remotely. 

                        So, again, for some people, they have said that the lack of distraction in the office, so the fact that they're working from home, means they're more productive. And this is one of the reasons why they don't want to return to the office. That's something we need to consider as well. 

                        Each case will turn on its own facts, particularly in this scenario, and what we want to make sure is that somebody isn't being disadvantaged, whether that's to do with any of the equality grounds or disadvantaged in relation to any of the other grounds that they might raise. Hence, the policy is so useful because at least we can rely on that then as the key reason and rationale. 

                        The other consideration is, is it acceptable to offer an alternative hybrid situation rather than full remote working? And again, 86% said that it is acceptable to offer alternatives to the employee. Obviously, negotiation and consultation is the best approach in that regard. But ultimately, we've got to consider in line with business requirements what is required. 

                        And it's reasonable in line with business requirements to say, "I need you in the office because of the fact I need you to share your knowledge and learning". It's also reasonable to say, "I need you in the office two days a week because I want you to build connectedness with your team colleagues in a team setting".

                        And again, we're taking these requests post-COVID guidelines, that that return is important for that reason. So, again, we want to try and be as fair as we can. 

                        The overarching piece here is we know that a lot of people in this what has been labelled Great Resignation are leaving organisations because they're not giving them the opportunity to work remotely. So it is a hugely important retention tool for staff as well and a hugely important attraction tool, particularly when we definitely have a shortage of talent in the majority of areas. I wouldn't even say now it's certain sectors. It's the majority of areas. So, again, hugely important that we are proactive in terms of addressing this. 

                        Next is if the employer seeks to withdraw from the arrangement, what's reasonable notice? Again, remember, when you're agreeing this in your policy, you're going to put in a caveat that says, "Look, we're agreeing to remote working on the basis of we can now facilitate it in line business requirements. However, if at any stage we no longer can facilitate it, we reserve the right to withdraw from the arrangement. And in doing so, we will give you reasonable notice". 

                        In terms of what is considered reasonable notice, the majority were in favour of between one and three months. And again, I think you would need to probably give the employee at minimum two, and likely three, months of that request to withdraw. And the same would apply, I would argue, for employees because, again, it requires the business or the employee to make significant adjustments. 

                        And when asked about how long would the employee need to give, 40% were in favour of one month. But I do feel it should be longer, and then both parties can agree it to be shorter. 

                        I do think if you put in a caveat of at minimum two months, ideally three, that both parties are giving that kind of notice, I think that's really fair and reasonable to both parties. I think a month is too short, especially if an employee has to readdress arrangements, etc. So I think that's important just to consider in your policy. 

                        Next, if you want to change the details of the arrangements, what will that look like? Again, same period of notice will be required. And again, I think that's respecting both individuals' need to be organised in that regard, and the same applies for the employee. 

                        The next one, which is an interesting one, is should the employer bear the cost of all the equipment for remote working, including the cost of maintenance? And 85% said yes, and I would agree. It's part of their working tools. So if you're going and facilitating it, you need to be able to facilitate the working tools that complement that. 

                        But again, making sure that you have the appropriate software on the systems to protect against GDPR, to protect confidentiality, to protect in relation to security and hacking, which is becoming much bigger a problem in the last number of months. So again, really important. 

                        The other question is should an employer have entitlement to monitor the employee? And 84% said absolutely not in terms of cameras, etc. However, 84% considered that an employer should have an entitlement to monitor the activity of the employee. So I thought that was interesting. In other words, that they are logged in and they are working at the time. I thought that was really important. 

                        And remember, as well, we have an obligation to ensure that we maintain appropriate records. It's important that the remote worker does keep a log of their times of work and their breaks and also the rest periods to ensure that we're managing the right to disconnect, and we're managing people's obligations under the Organisation of Working Time Act. 

                        It's more probably prevalent now. Obviously, the right to disconnect was introduced because during COVID, there was a concern that these employees were required to be logged in after hours. 

                        And again, hugely important as a result to make sure that you have the caveat in there to say, "Look, if you're working from home, we don't expect you to be working outside of your normal hours. And if you are, then you need to let us know so we can ensure you're getting your appropriate rest and recuperation in line with the Organisation of Working Time Act". Again, you're reminding them of that option that they have in terms of the right to disconnect. 

                        Really important because the mental health for employees who have been working remotely without having the contact piece has been a big concern and has been something that we have been conscious of, and many employers have done a superb job at addressing. So, again, we want to make sure that we maintain that going forward. 

                        So there are some really good findings from that consultation document, which we expect we will see in the Right to Request Remote Working document. Once that's published, we'll get Legal-Island to send it out to you. It'll also be on our social media at The HR Suite.

                        And also, if there are any key significant changes that we didn't expect, we'll obviously let you know. But I would say you would be very safe to say you could update your policy based on what we've covered off this morning. And as I say, for most organisations, you've done that already because people needed the policy. Remember, the Code of Practice is an on-going document in terms of updating your policies if the need arises. 

                        So what are the likely potential grounds for refusing a request to remotely work? We've covered in terms of the physical nature of the job. We've covered the fact that maybe somebody is new and we're willing to facilitate after they pass probation or after 12 months' service, that that will be the length of time. 

                        Remember, even if the statutory instrument says something different to you, once you can justify it in your policy, then that's perfectly fine. 

                        And again, I think you should, in your policy, outline what might be reasonable requests to refuse remote working, and obviously caveat that with saying, "This isn't an exhaustive list. This is just to give some examples", which might be cover, it might be somebody is on leave, etc. 

                        Remember, though, the case that was taken where an employee worked in a veterinary surgery and she requested the option to take parental leave, and they said, "Look, sorry, we can't give it to you because someone else is out". She requested again, and they said, "No, we're too busy". She took a case to say that she was prevented from taking her statutory entitlement and she won her case. 

                        Again, it's not fair and reasonable to constantly not have cover if that was the requirement, for example, in that leave ground. So, again, keep that at the back of your mind in relation to this. You can't just say, "Well, look, we want everybody back in the office". That's not going to be a justified ground, I would argue. So, again, it's important that we are thinking now about what are the reasons we may have to use. 

                        Ultimately, I would argue that failure to give somebody the right to request remote working, if you can't facilitate the request, that might mean that they're going to go elsewhere to get it. So, again, consider it in line with your retention policy, because I think that's going to be hugely important. 

                        In relation to considering a request, what should it involve? I would advise that you get employees to do an application in writing, ask them to cover some key areas in relation to how long they want it for, what arrangement they'd like, do they see any challenges in terms of work if this request was granted, etc. So, again, facilitating the request, at least you have all the information available to you. 

                        And again, remember, just because somebody doesn't fill in a form, that shouldn't mean we don't facilitate their request. And that was emphasised by the WRC when an employee didn't fill in a force majeure form, yet they told their employer they were requesting force majeure. The employer said, "Well, you didn't fill in the form. Therefore, we didn't think you were following through with your request". And the WRC said, "Look, just because they don't fill in a form, that doesn't negate the request". 

                        So, again, make sure that you have a process, but that you're not disadvantaging somebody who doesn't fill in the form, for example, in this case. Again, good advice and good consideration are in relation to that. 

                        How can you prepare for the new legislation? Well, without doubt, have your policy drafted at this stage. Ideally, do it with consultation with your employees. Identify any concerns they may have. And also, consider the other policies that complement this, like the right to disconnect, like confidentiality, like GDPR, like your health and safety risk assessments, and also your Organisation of Working Time Act in terms of considering the break. 

                        So, again, make sure you've got your policy and you've got your complementary documents to complement that, because the right to request remote working needs to make sure that the person is not in breach of the Organisation of Working Time Act or the right to disconnect. 

                        And again, I would really encourage that there is some form of sign-off, and definitely in the policy, you're stressing that if they do encounter any issues, that would be raised. 

                        I suppose in terms of concerns around remote working, most of the concerns we've encountered is that people don't have the right setup at home themselves, that they're in shared accommodation, they don't have enough space to be able to sit ergonomically comfortably at a desk. All of the issues in relation to confidentiality and breach of data, etc., are a concern. They're the most typical reasons. 

                        Before you say yes or no to your request, you really should do your risk assessment, you really should check the broadband, do all of those things, because they're the steps along the way that have to be met before we can say yes. 

                        And obviously, if, for example, broadband is an issue and the employee resolves that issue, then their request should be considered again. 

                        So, again, really important that there is a caveat, particularly if it's things like the desk, space, or if it's the broadband so that we're being mindful of that. 

                        Another thing that's coming up is the proximity bias that Rolanda mentioned, which is employees saying, "Listen, I feel that I didn't get that project because I'm working from home. And because Johnny is in the office, I feel I need to be going into the office so people see me. There are informal meetings happening without a plan, so I can't dial in remotely. And as a result, I'm being disadvantaged". 

                        So, again, I suppose try to use and maximise technology by including those people in those informal meetings that happen as much as possible and potentially agreeing a day that those meetings . . . I appreciate that there will be ad hoc days where a meeting will need to happen sporadically, which is perfectly fine. But again, in general terms, try to include the remote workers as much as possible because that is something that is crucial to the whole process. 

                        I mentioned and touched on GDPR and data breaches and security and hacking issues, etc. They've definitely increased by people working remotely. So we really do need to proactively make sure that we're on top of people's understanding of managing data, their obligations, the procedure that they should follow if somebody says they need to dial into their system, that they don't give access without somebody from the company involved in the correspondence as well. Again, they're raising their head quite a lot. 

                        And the final area I'm going to touch on is the whole area of remote working abroad. And obviously, that's a very topical area because of the fact that if somebody is working abroad, it's "Which legislation is going to apply?" And also, if they're, for example, outside of the country for more than the 183 days, the revenue implications associated with that. 

                        The key important thing is that the employee knows that they need to let you know, if they are intending to request to work abroad, that their location has changed, their jurisdiction has changed. Again, that could have issues for you in terms of data, particularly if people are working outside of the UK, or outside of the EU. For example, the UK or the U.S. 

                        It needs to be something that you're aware of. Again, when they're requesting the remote working, you should be saying, "We're facilitating the remote working. You're saying you're going to be working from your home in Dublin. Should that change, please let us know, because the request at the moment is to facilitate you to work from home in Dublin". So, again, they're obliged to come back and talk to you should they want to work anywhere else. 

                        I'm going to hand you over to Rolanda. And we might answer some of [inaudible 00:30:12] and we'll go for there.

Rolanda:         Thank you very much, Caroline. That was a very comprehensive overview of all of the key issues identified in the consultation document. And we will send you a wee link to that consultation document in the follow-up email so you can have a quick look through that and see the key issues that are arising in that. 

                        Now, we've had a couple of questions. And the first one really is just, I suppose, in relation to the legislation. So there is proposed to be a piece of law that will give employees the legal right to request remote working. Someone is asking, Caroline, "Do you think that this will just focus on remote working or will it include flexible working generally?"

Caroline:         What we're told is that it's going to be a statutory instrument, so it's going to be a Code of Practice. What we're also told is that it's going to be the right to request remote working. But in it, I would expect that it will allow the employer to suggest alternatives. And in turn, it will allow the employees to suggest alternative [inaudible 00:31:22]. Addressing flexibility directly, I would say if we want to retain staff, etc., we definitely need [inaudible 00:31:34] as part of it.

Rolanda:         Okay. So it's going to be a Code of Practice as opposed to a piece of law itself. 

                        Now, what struck me when you were going through all of that was that when employers are advertising a post at this point in time, a key consideration is probably whether it is going to be a hybrid or remote possession. So a lot of what's been discussed in the consultation is talking about people having a certain length of service to make the request. What about those issues where . . . I mean, should employers be considering whether a position can be facilitated remotely before they advertise it?

Caroline:         So over 70% of jobs now, we're told, either have hybrid or are full remote working. So it's a very high percentage of jobs. And the [inaudible 00:32:28] huge [inaudible 00:32:30] they can't. 

                        So we're definitely seeing more and more jobs are being advertised for two key reasons. One is to attract talent from different locations and open the talent pool. And we know that we won't get people if we don't offer this option now, because they've stressed to us that this is up there with ensuring that they're getting good pay and benefits. This is the second most important thing to them. So, again, it's crucial to attraction and retention. So I would say without doubt, Rolanda, this is going to be something that we'll be advertising in advance. 

                        The key difference to remember is in most employees' contracts recruited prior to COVID, most of them said your place of work was the office. Some of them were remote previously, but the majority were at the office. Whereas now, going forward, I would say most contracts should say, "It will be a combination of working in the office and working from your home in Dublin", i.e., you're stating a location. 

                        Ultimately, if the employer needs to bring you back, as we mentioned, giving notice, etc. . . . If your job has always been remote, then there's no contractual obligation on the employer to agree to that. So that presents a challenge for the employer. 

                        So, again, when you're doing your contract of employment, which is the most fundamental document, as we all know, it should cover those avenues. 

                        Again, I think, if it was me, I'd be putting in three months' notice of the request to change both for the employee and the employer because I do think it's a very significant change. I don't think a month is sufficient, personally, in relation to either the employee requesting the change or the employer. 

                        Remember, if you put in three months, by mutual agreement, the parties can say, "Look, we'll actually have everything agreed in six weeks, so you can actually do it in six weeks". So there's no problem in it being lowered. But it's to just give you that length of time both if the employee requests and if the employer requests, to be fair and reasonable to both parties.

Rolanda:         Yeah, I think there needs to be sufficient time to enable proper investigations to take place, etc. 

                        Just moving on, somebody has mentioned, "What about the EU legislation in respect of flexible working?" And I think the Irish government is aware that that's an issue and that has to be implemented at some point in time.

Caroline:         Absolutely. So we have until August 2022 to implement the Work-Life Balance Directive. And you'll have seen in the budget, for example, that parental leave was increased by an additional two weeks in line with that legislation, which is coming in next June/July. It's very much down to the wire in terms of meeting the obligations of that legislation. So flexibility is definitely . . . and family leave, etc. 

                        Remember, though, that directive is linked to those that have caring responsibilities and those that have family responsibilities. I think most employers are trying to broaden that. So they're not just linking it to those that have caring and family responsibilities. People have the right to request flexibility or the right to request a hybrid or remote just because. I think that's a much better approach than just linking it to those two criteria, which is what the directive has done.

Rolanda:         Yeah. I mean, certainly in the UK, initially the right to request flexible working was carers and parents, and that has been extended now to anyone. 

                        So the next question . . . and there's a bit of a statement as well, a comment. "Hi. Is the Great Resignation a symptom of the long-standing issue of poor employment rights legislation, for example, a lack of flexible working, etc., in Ireland? And will this piece of legislation, or statutory instrument, only favour larger organisations who can offset the costs of having employees work remotely?"

Caroline:         I think there's great cost savings no matter what size your business is in having employees working a hybrid model. And I definitely think that, for most employees . . . We're not talking about people now with under-performance, etc. For most people, if we train them and up-skill them to be productive working remotely and have good criteria and guidelines, I think, for all organisations small and large, there are benefits. 

                        But like most things, there are exceptions to every rule. So for me, I don't think the cost will outweigh the benefit, even if it's a small organisation. And for a small organisation, if there are cost issues, for example, duplicate desks or an additional laptop, etc., I think by even being upfront with your employees to say, "Look, we can't facilitate it with everybody because it's a cost of X to facilitate it, but our intention is that by May 2022, we will be in a position to", I think that in itself will give employees the comfort that it's coming in their organisation. 

                        I think that person who made that comment is right about the Great Resignation. It's not just the fact we're not giving them flexibility, but I think that's definitely one key thing. 

                        I know of lots of examples where . . . I was chatting to somebody recently and her husband is a solicitor. He's resigned from his position because he couldn't get the right to work remotely, and he got that in another solicitor firm. Again, a really good person lost because of that. 

                        So I think that's one. But I think also there's huge pressure on pay at the moment. When now people are leaving a job, they're not leaving because they're getting a couple of per cent of an increase, etc. They're getting at minimum £10,000 of a lift. 

                        So there's a huge war on talent in terms of people are finding it very difficult to get good people in majority of sectors. Before, we would have kind of said, "Well, it's mostly tech or it's mostly this". I would argue now it's across huge areas and sectors of the economy. And we have a lot of clients doing things now, like paid maternity, and thinking differently about what they offer to ensure that they do stand out from the crowd in terms of attraction and retention. 

Rolanda:         And just while you're talking about salary, somebody has put down a question there, which is a very contentious subject generally. "Do you think it's appropriate or reasonable that somebody working remotely would be paid less?" [inaudible 00:38:59] costs.

Caroline:         Yeah, Google, we've seen, in the States, for example, have started a programme where if, for example, you're in New York, you get paid X, but then there's a reckonable calculator the further out of New York you go. So if you're in the middle of the countryside and your cost of living is less, then your salary decreases as a result. 

                        They're trialling it in the U.S. But like most things with Google, the fact they're trialling it could mean that that's something that they introduce. So I think that's probably the bravest attempt to do that. 

                        However, it's back to retention and attraction. I think that if we're doing like work and you can justify why I'm being paid differently and it's acceptable to the person, then you can try that approach. But I do think you will be disadvantaging your market position in terms of attraction or retention.

Rolanda:         When you think about that a bit, and I've thought a lot about that, whenever an employer is setting a salary for a job, they're not thinking, "We're going to make it this because they have to come . . ." They don't know where people live, so they're not saying, "They're going to have £200-a-week travel costs". It's not like they're putting the pay for the job based on people's travel. It's the salary that's for the work, that's for the job, as opposed to things like travel. 

Caroline:         It is, but you will definitely find that if you have a company and they're based in Dublin, they're likely to be paying much higher salaries than a company based in Waterford, for example. So I think that's an important consideration. 

Rolanda:         Yeah, it's certainly well [inaudible 00:40:47] on that, I think. 

                        Someone has asked as well if you could maybe talk a wee bit more about, I suppose, the physical necessity of having people in the office. So that's obviously one reason why employers want people in the office. Sorry, there are some reasons why employers want people in the office. So could we maybe focus on those again? Because those would be important for [inaudible 00:41:05] can't be filled remote working. Maybe we could have hybrid. Sorry, the sun is shining in my window here. I can see the reflection.

Caroline:         What a great complaint. So I would say it'll depend on each organisation, and it'll depend on each job, and it'll depend on each scenario. It's really important that your policy reflects each case will be taken on a case-by-case basis based on its merit and based on the business requirements at that time. 

                        For example, it could be a case that at a certain period of time, we've three newbies after starting, and you're an experienced person, and we really need you to be in the office to help with their training. So for the next six months, we can't facilitate remote working. But after these people are trained, for example, we may say, "Okay, well, we will facilitate it after that". 

                        So I do think your point in time piece has to be important rather than saying, "Anyone who requests it, we give it to them, or anyone who doesn't, we don't". I think you have to take the actual contextual situation into account. 

                        Second of all, I think there are certain things that we can't facilitate, i.e., it's a specific type of job that needs the person to be working physically there because it's client-facing. For example, it's a receptionist, etc. 

                        However, if it's a job that can be done remotely, I would argue our obligation is to assess "Can we do remote?" If we can't do full remote and that's what they've requested, can we do a diluted version? So, for example, the person has applied for five days, we go back and say, "Look, we can't give you five. We'll give you three. We need you in the office".

                        I think Ryanair have said they need everyone in the office on Monday and Friday. That's part of their policy and it's non-negotiable. Other companies say, "Look, Mondays are meetings. We need everybody in the office on a Monday". 

                        So you can set your own caveats in relation to that. But they need to be justified, they need to be fair, and they need to be reasonable. So take it on a case-by-case basis. Take into account the circumstances of . . . 

                        Now, keep in mind what I said about it can't be indefinite. So if I say, "Look, we've three new people. We need you to help with their training. It really needs to be done physically in the office with social distancing rules applying. But then after the six months, we will try and facilitate it. You can apply again and we'll do our best", you need to try and do your best then, because, again, we don't want to disadvantage somebody. 

                        The same as if we say, "Look, your performance isn't what it should be. We therefore need you in the office so we can give you more coaching and support". But then after three months, we need to assess the performance has improved so that they can apply then. 

                        So we can't just say no for whatever reason. We need to be fair and reasonable in relation to timing of that. 

                        And obviously, it goes without saying . . . which I didn't say. But it goes without saying the paper trail. They request it, you need to keep the paper trail of your rationale. And that goes without saying, as I say.

Rolanda:         Yeah, that's what I was just going to sort of end on, is about the importance of having records. I suppose at the heart of all of this and the Code of Practice is that employers have a duty to consider. So you need to be able to demonstrate as an employer that you gave due consideration to somebody's request, because if they challenge that in whatever way they can challenge it, that will become very important to show that you did give due consideration to the right to request. 

Caroline:         And just finally, Rolanda, just to say, obviously, where this will become the biggest issue for you is if the employee was to say, "I'm being disadvantaged because of my disability", my gender, my race, etc. So that's really important that you can address those. 

                        And for that reason, if somebody says, "Well, I feel I'm not being fairly treated because of my gender or because . . ." I'd always give them that right to appeal if they did come back on that basis, just to add that as the final comment. Thanks, Rolanda.

Rolanda:         That's a very good point. Well, folks, that shores you up for today. As I said, Caroline is going to be speaking on our Annual Review on 24 and 25 November, which we're busy getting prepared for. Caroline is going to be discussing the difference between bullying and management. There's still time to book for that, and you'll get some information in the follow-up email. 

                        There is Caroline's contact details if you wanted to get in touch with her. She's at The HR Suite. 

                        And also, just our next upcoming webinars then. The very next webinar is a kind of multijurisdictional one, and it's with a chap called Stephen Frost. He is going to be looking at the big D&I opportunities sort of arising as a result of COVID that are vital to the workplace. And that's on 27 October. 

                        And our next webinar with Caroline is on 9 November, and it's about dealing with allegations of bullying. A bit of a precursor to the Annual Review session, if you like. 

                        That's really all we have for today, so thank you all so much for your time. 

Caroline:         Thank you.

Rolanda:         You'll get all the information you need in the follow-up email. So thank you very much again, Caroline, for your time. 

Caroline:         Thanks a million. Take care, everybody. Have a lovely long weekend. 

Rolanda:         Bye, everybody.