Protecting Workers’ Rights during Covid-19 – a Remote Prospect?

Alan Eustace, Trinity College Dublin

The Covid-19 pandemic has seen more people working from home than at any time since the Industrial Revolution killed off cottage industry – and remote working may well be here to stay. Major employers like Twitter have announced they will be allowing all employees to work from home indefinitely, even after the pandemic. Although some are sceptical about the ‘death of the office’, it is clear that many businesses will have significant incentives to encourage remote working in future: the expense of commercial office space, particularly in Dublin city centre, and the necessary adjustments to office environments in order to allow for social distancing; plus, avoiding the risk of outbreaks of Covid-19 among their staff.

Many workers, too, will have come to realise the benefits of remote working over the past couple of months: no long commutes, more time to spend with family, only getting dressed up if there is a Zoom call scheduled… And, of course, a lowered risk of contracting the Covid-19 virus, fear of which is likely to remain with us until a reliable vaccine is developed. Widespread remote working will bring many challenges for how labour law protects workers’ rights. This article considers the regulation of working time as one example.

Article 24 UDHR recognises ‘the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.’ The Organisation of Working Time Act 1997 provides for a minimum rest period of 11 hours per day, plus at least one full day off per week, and a maximum average working week of 48 hours. If normal working hours are not specified in the contract of employment, employers are obliged to notify workers of the hours they are expected to work at least 24 hours in advance. Employers are obliged to keep records to demonstrate they have complied with these requirements in respect of any given worker.

Long before Covid-19, there was widespread concern that the ease of mobile digital communication was obliterating the distinction between ‘work’ and ‘home’. Dolly Parton’s well-documented concerns notwithstanding, at least ‘working 9-to-5’ in a physical business premises makes compliance with working time regulation relatively straightforward.

Working time is defined in the 1997 Act as ‘any time that the employee is (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work’. Although ‘outworkers’ are defined in the 1997 Act in terms that would capture employees who are working remotely, there is no specific provision made for the monitoring and recording of working time of outworkers apart from the general obligations of employers under section 25.

The employer could operate a system whereby employees simply ‘log’ the hours they actually spend working. But as we know from experience with the ‘gig economy’, that does not account for the time spent waiting for work, particularly for lower-ranked employees in large organisations whose work is generally not self-directed but assigned by superiors. An employee dependent on work being assigned to him by a superior may know to expect an email at some time during the day, but not when, which affects how he spends his ‘free time’ in between. This will be even worse if higher-ranked employees themselves take advantage of remote working to put in flexible hours. Of course, it is easier if an employer simply operates on the premise that an employee is available to work at all times during normal business hours – but even before widespread remote working, it was not at all uncommon for managers in some industries to contact employees at all times of the day and night. In any event, it will be difficult to stop employees working extra hours if they want (or feel pressured) to, even if they have ‘clocked out’ at 5pm.

There are significant problems for enforcement of working time regulations in an age of widespread remote working. Under section 8 of the 1997 Act, inspectors appointed by the Minister has the power to ‘enter at all reasonable times any premises or place where he or she has reasonable grounds for supposing that any employee is employed in work’. Sub-section (4) provides: ‘An inspector shall not, other than with the consent of the occupier, enter a private dwelling (other than a part of the dwelling used as a place of work) unless he or she has obtained a warrant from the District Court under subsection (7) authorising such entry.’ The Act appears to assume that where people live and work on the same premises, there is generally a clear delineation between the two. While this might be more or less true for a workplace like a family farm or a shop with an apartment on the upper floor, it does not reflect the experience of the hundreds of thousands of people who, since the pandemic hit, have cobbled together ‘offices’ in the corner of their bedroom or at the kitchen table.

There is no easy solution for public enforcement: first, inspectors could begin visiting more private residences – which will require, at great public expense, more inspectors and more sittings of the District Court to obtain warrants. Second, the Act could be amended to remove the requirement of a warrant, but that is likely to conflict with the constitutional protection of the dwelling. Third, inspectors could rely on employer records to verify that businesses are compliant with their obligations in respect of remote workers – but the above paragraphs have already highlighted the difficulties with adequately recording remote working time. An inspector can hardly hang around someone’s home all evening to make sure they do not continue working after business hours ‘off the books’. If the evidence necessary to convict employers of an offence under the 1997 Act is now to be found in the homes of his workers rather than on a central business premises, we can surely expect enforcement to decline.

Other jurisdictions have recognised a ‘right to disconnect’: under a law that came into force in 2017, French businesses with more than 50 employees have been obliged to enter negotiations with trade unions to restrict the use of after-hours email and other communications. Spain adopted a similar law in 2018, and the ILO has called for more countries to follow suit. If remote working is going to become more deeply entrenched in Ireland as a result of Covid-19, it may be time to shore up regulations on working time with a legal right to disconnect here.

Remote working was thrust upon thousands of businesses and their employees during this pandemic, but both employers and employees might see benefits to keeping the practice after restrictions are lifted. However, the existing legislation to control working time does not seem adequate to vindicate the right to leisure time. This is likely to also be true for any labour law regulation dependent on inspection of premises, like health and safety. If remote working is to become widespread in Ireland on a long-term basis, we may need to redesign some labour law regulations to better protect workers’ rights.

Alan Eustace is a PhD candidate in Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Alan Eustace, 'Protecting Workers’ Rights during Covid-19 – a Remote Prospect?' COVID-19 Law and Human Rights Observatory Blog (12 June 2020)

http://tcdlaw.blogspot.com/2020/06/protecting-workers-rights-during-covid.html

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The information provided in this document is not legal advice or professional advice of any other kind, and should not be considered to be such, or relied or acted upon in that regard. If you need legal or other professional advice, you should consult a suitably qualified person.