Jack Quann
Jack Quann

21.13 28 Jun 2021


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As the country continues to move on its re-opening, the debate between office working and working from home has not gone away.

Some companies have offered their workers the option of working from home full-time, while others have opted for a hybrid model.

But employment law solicitor Richard Grogan told The Hard Shoulder people cannot demand to stay at home.

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"The current answer is 'No you can't' because they haven't brought in the legislation to allow you to ask to be allowed work remotely.

"When they bring it in, you're going to be allowed ask, the employer's going to have to listen very quietly and nicely to you.

"If they refuse, then your claim is going to be down to the [Workplace Relations Commission] with a backlog of about a year.

"And in the interim, you're going to have no choice but to actually work in the workplace.

"So it's kind of a bit of an issue."

Dismissal?

Richard says employees who insist on working from home can be dismissed.

"Some employees will say 'Well I'm not coming back' and the employer will say 'Fantastic, goodbye'.

"The employer can say 'I'm not giving you the right to work from home', the employee says 'I'm resigning' - it'll be a constructive dismissal case possibly.

"But your contract says you will work here in Newstalk, that's what it says, you've broken the contract so that's it".

However Richard says, going forward, things may have to change.

Currently employers have to comply with GDPR requirements and health and safety, but he says "about 30% of houses are not qualifying for the health and safety risk assessment - particularly apartments.

"So if we're going to start building new apartments, they're going to have to be a lot bigger.

"You have to have space between people, and you're also going to have the GDPR issue.

"If you're working and somebody can see your machine, then all that information could be in relation to clients or customers - so you've got a GDPR breach there, potentially.

"So employers have a huge nightmare issue."

GDPR

And he says the onus is on the employer to protect the data.

"The employer now has to put up procedures in place that every time you stand up, you close down your computer, that it's swiveled in a certain way to make sure nobody can see it.

"You can't have your back to the window, for example, because somebody could look in the window.

"An awful lot of times it just doesn't comply and you go 'We can't actually fix it' so you have to go back to the workplace".

He says employers also face large bills to set up home offices for their workers.

"It can cost €1,500 to €2,000 to set up a proper workstation, and the Government only allow you to claim that back over seven years.

"So it's a big cost for the employer that they're now paying tax on as well.

"And there then is the issue of can you actually fit it into some apartments - it's not just a table and chair: it's a printer, a scanner and all the rest".

'Car crash of litigation'

On the reverse side, for those who do not want to work from home Richard says it's a two-way street.

"Then the employee will be saying 'Read my contract' - which is the exact thing that the employer who wants the person to come in will be going 'My contract says I'm entitled to work, that's my workplace and I'm coming in to work'".

He says employers who refuse to allow employees come back to the office can also face legal action.

But he adds that there are still lots of conflicting questions.

"Employment lawyers are turning around and saying we're heading towards a car crash of litigation relating to this whole issue of coming back to work and not coming back to work.

"There are conflicting rules from the Data Protection Commissioner, health and safety and the medical side."

He explains this can be problematic due to employers not being able to ask workers whether they are vaccinated, except health workers.

"You can't ask them, and now you have the position if you do ask - and even if they do it - you can't segregate between vaccinated and non-vaccinated".

However, Richard notes one important distinction: "Health and safety actually trumps GDPR - the Data Protection Commissioner might think it's the other way around.

"But if they come out with a health and safety that's clearly set out on medical grounds - 'this is allowed or this is needed' - then in those circumstances the GDPR as regards asking people falls away".

Explainer: 'Can I refuse to go back to the office?'

00:00:00 / 00:00:00

    

Main image by MaximeUtopix from Pixabay 

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Data Protection Commissioner Explainer Office Working Richard Grogan The Hard Shoulder Vaccination Working From Home

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