Desmond Ryan, Trinity College Dublin
Introduction
COVID-19 throws up a myriad of legal issues relating to the safety, health and welfare of employees. A range of questions must now be considered as regards, for example, the well-being of employees returning to the employer’s premises following the easing of restrictions. Amongst these are the questions of reasonable accommodation explored by Professor Mark Bell.
Here, I will focus on similar, but distinct, questions concerning employees working from home (‘WFH’). Alan Eustace has already considered the implications of WFH for legal protections under the Organisation of Working Time Act 1997. Another core legal dimension of WFH concerns employers’ duties to safeguard their employees’ safety, health and well-being when working remotely. How can existing legal frameworks be applied meaningfully and fairly in this situation, and what adjustments to those frameworks may be required?
Given the suddenness with which organisations were obliged to pivot towards WFH back in March 2020, it is understandable that few employees or employers may have been ready for the range of challenges which WFH would bring about. But, regardless of whether employees are WFH or not, employers owe a wide range of duties to their employees so as to ensure that their well-being, both physical and psychological, is protected in the course of their work. These duties have various different sources in employment law, including the incremental development of common law jurisprudence by decided cases of the courts, decisions of specialist employment law fora/tribunals, as well as specific pieces of legislation designed to protect employees and to ensure that their well-being is safeguarded. Human rights instruments also play a key role. Many of the judicial and legislative bases on which such rights are protected have to date been predicated on the assumption that “home” is the antithesis of “work”, and that when a person is at home they are not working.
Technological developments have, of course, significantly eroded such a brightline delineation between work and home, but the distinction has, for many, now been entirely obliterated in light of the exigencies of COVID-19. This raises a series of urgent questions about how employment law frameworks can and should adapt in order to ensure that employees WFH continue to enjoy meaningful legal protection as regards their safety, health and welfare. At the same time, however, employers will be concerned lest unrealistic expectations be placed upon them which do not have sufficient regard to the nature of the present emergency and the circumstances in which employees and employers alike have been obliged to improvise and adapt to new ways of WFH flexibly. It is necessary, therefore, to consider how established legal frameworks in this area may have to be adapted in order to properly protect employees WFH whilst recognising the constraints on employers.
Common Law Sources of protection for employees WFH
Turning first to the common law, tort law and contract law are the core sources of protection for employees as regards their safety, health and welfare. Tort duties are imposed upon all employers, whereas specific contractual obligations are assumed, expressly or impliedly, by employers when they enter into contracts of employment with their employees. In practice, however, the distinction between tort and contract in this area can be elusive, since many of the key contractual duties likely to be of relevance here are implied duties such as, for example, the implied contractual duty on employers to act responsibly towards their employees and to provide them with a safe working environment. These effectively mirror and are largely coterminous with several tort law duties. A particularly adaptable implied term in the contract of employment is the employer’s implied mutual duty of trust and confidence, a dynamic and flexible implied term that may well come to be engaged in cases involving WFH-related disputes.
Briefly, under both tort and contract law orthodoxy, employers must ensure that their employees enjoy the provision of a safe place of work; the provision of proper equipment; and the provision of a safe system of work. At a minimum, these obligations require employers to give careful thought to the appropriateness of the facilities which employees are expected to use in the course of carrying out their work. Under normal circumstances, this is a well-established part of an employer’s risk assessment and its examination of the premises, equipment and machinery that it makes available to employees in the employer’s premises. When one considers the situation of employees WFH, however, matters becomes far more complex. To what extent will employment law require employers to adapt such risk assessments and planning strategies in order to encompass, for example, assessments of the ergonomic suitability of an employee’s workplace or equipment when they are WFH? Where employers seek to do this, will employees always be able to resist such attempts on the basis, for example, of an assertion of a rights to privacy and their wish not to have the employer enter their home so as to monitor, supervise or inspect the premises or equipment of the employee? Where an employer expects an employee to work by WFH only temporarily, will the employer nevertheless be obliged to furnish an employee with equipment, tools, machinery, and technology commensurate with the tasks they are habitually expected to perform? Is it appropriate that the employer must shoulder the significantly enhanced costs that would be associated with such measures, particularly against the backdrop of an economic situation where many employers may have undergone and may anticipate significant reductions in revenues as a result of the crisis? These are just some of the many questions which have yet to be answered by the law on employers’ liability in assessing what is reasonable in the discharge by employers of their common law duty of care in tort, and their contractual duties, to their employees who are WFH. Whilst it can be anticipated that courts will be reasonable in what they expect of employers, particularly in the short term, having regard to the unprecedented and unforeseen nature of the pandemic, the overriding concern of the law of tort and in particular its reference to the employer’s duty of care as “non-delegable” suggests that the balance as between inconvenience to an employer and potential risk of injury to the employee will tilt heavily in favour of the latter.
Isolation and loneliness are foreseeable consequences of WFH for some individuals. Case law in recent years has stressed the importance of employees not feeling abandoned or isolated by their employers, particularly in circumstances where the employer is objectively on notice of concerns or difficulties in the workplace (see for example McCarthy v ISS Ireland Ltd (Trading as ISS Facility Services) [2018] IECA 287). This and related case law should be considered carefully by employers, particularly in the context of managing complaints or concerns of which they are or ought to be aware. The fact that employees are WFH does not, for example, absolve an employer from the need to progress, with reasonable expedition, investigations into concerns about an employee’s welfare.
More generally, this case law signals that employers must now be proactively considering how they can ensure appropriate safeguards for employees WFH which go well beyond the physical safety of those employees and extend to their well-being in a much broader sense, bearing in mind that, for many, the evolving nature of the pandemic is a source of anxiety and stress in itself.
Statutory protections for employees WFH
In terms of statutory protections for employees WFH, working time legislation analysed by Alan Eustace must be carefully considered by employers to protect employees from burn-out and to ensure that appropriate work-life balance can be maintained. The right to disconnect will inevitably be the subject of much more detailed focus by courts and tribunals in the context of employees WFH. There have already been decided cases applying the statutory regime to protect employees from overwork, with the Organisation of Working Time 1997 being utilised as an instrument to emphasise the importance of work life balance: see the 2018 decision of the Labour Court in O’Hara v Kepak.
In that case, the Court found that the respondent employer was, through the complainant employee’s operation of its software and through the work e-mails she was sending, aware of the hours the complainant was working and took no steps to curtail the time she spent working. Accordingly the Court concluded that the employer, being aware of the complainant’s working pattern, by its failure to monitor and curtail it and by its failure to keep proper records of her hours of work, “permitted” the complainant to work in excess of the statutory maximum hours of work in the relevant period.
Cases such as O’Hara v Kepak will doubtless be relied upon in order to protect employees from expectations of being “always on” and as such this line of case law is likely to become increasingly pertinent as employees seek a reprieve from constant e-mail traffic, invitations to Zoom or Microsoft Teams meetings at all hours of the day and often at very short notice, and in relation to the difficult question of annual leave which has thrown up many complexities in the context of Covid-19.
Specific statutory protections for employees WFH can also be identified in the Safety, Health and Welfare at Work Act 2005, which imposes a wide range of duties on both employers and employees in this regard. Practical guidance on how employers and employees can adhere to these obligations in the WFH context, and answering many of the questions I have identified above, has recently been provided by the Health and Safety Authority.
Fundamental Rights considerations in the context of Employee Well-being whilst WFH
Other, more fundamental, questions concern the appropriate balance that the law should strike between respecting an employee’s home life and facilitating WFH arrangements on a contingency basis. Tellingly, many major human rights instruments include the concept of ‘home’ as being bound up with concepts of privacy and inviolability which posit a clear separation between one’s work and one’s home life. Under Article 8 of the European Convention on Human Rights, for example, express protection is given for respect to a person’s “private life, home and correspondence”. Article 7 of the Charter of Fundamental Rights of the European Union (2007/C 303/01) is entitled “ Respect for private and family life” and provides:
“Everyone has the right to respect for his or her private and family life, home and communications.”
The clear thrust of these provisions is to enshrine into human rights law a protection for the sanctity of a person’s home to enable them to develop their identity, dignity and personhood outside the workplace and in a manner that is separate from their identity as an economic actor.
Similarly, under the Irish Constitution there is express protection given for the inviolability of the dwelling under Article 40.5. The case law concerning that article emphasises the value of one’s home life being separate from the public sphere that is typically be engaged by the carrying out of a person’s occupation or livelihood (see for example Sullivan v Boylan [2013] IEHC 104).
Conclusion
These observations have sought to identify emerging questions about how existing legal frameworks may be applied or adapted to protect employees WFH. Several other WFH issues concerning employee well-being have yet to be considered in any detail by the courts or statutory tribunals or indeed the legislature since the emergence of the pandemic. These include data protection issues; questions of reasonable accommodation addressed by Mark Bell and the extent of latitude that an employer must be expected to show where a person’s home circumstances are not conducive to work.
Returning to the specific observations I have made herein on WFH, I hope that these will provide useful starting points for stakeholders exploring these and related questions about safeguarding employee welfare during the pandemic. This topic will be the subject of further observations in this series in the coming months, including reflections on how employees can safely return to their employer’s premises, and the legal issues arising in that context. It will only be with those observations, and the necessary adjustments to existing common law and statutory rules in the context of remote working, that employment rights protection will be truly capable of “working from home”.
Desmond Ryan is an Associate Professor and Fellow of Trinity College Dublin School of Law and a member of the COVID-19 Law and Human Rights Observatory.
Suggested citation: Desmond Ryan, ‘Safeguarding Employees’ Health and Welfare: Is Employment Law ‘Working from Home?', COVID-19 Law and Human Rights Observatory Blog (22 July 2020)
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