‘Baby, You’re the Boss at Home’: Giving Employees the Right to Work from Home - Part III

 Niamh Egleston and Alan Eustace, Trinity College Dublin

 

Introduction

The government today published its strategy on remote working, foreshadowing legislation in this area by September 2021. In two previous posts (part I and part II), we discussed our preferred model for the government’s proposed ‘right to work from home’. We believe the government should legislate for a right to work remotely, following the model we have set out. However, it would be remiss not to mention a number of concerns about legislating for remote working. Some of these are identified in the government strategy; others are overlooked. A lot has been written elsewhere about risks of working from home to employee privacy, and to the regulation of working time. We have identified risks we think are underdiscussed: to worker solidarity and equality on the grounds of gender and disability. 

Carefully managed, remote working can bring benefits to workers, including women and those with disabilities - but if implemented badly, a statutory right to work from home may end up furthering exclusion and disadvantage of vulnerable groups. In other words, if this is for real, we have to get it right.

 

 

Solidarity

The pandemic has impacted groups of workers differently. Broadly speaking, ‘white collar’ office workers have been able to work remotely without significant disruption to income and are at much less risk of infection than those in healthcare, construction, retail, etc. Normalised remote working might reinforce this ‘two-tier economy’. In this context, it is particularly important to note there are distinctly gendered and racial elements to this divide: although statistics in this jurisdiction are not available, in the UK, 60% of women worked in jobs that could not be done remotely, compared with 40% of men. Many of these same jobs are occupied by migrant workers, who already face insecurity and discrimination in the workforce.

 

It seems reasonable that there be some sort of material compensation for those workers who cannot work remotely, to reflect the inherently greater risks they will shoulder (even after this particular virus is brought under control). Elsewhere this has been called ‘hazard pay’. Since we do not want to offer financial incentives for workers to ‘sell’ their right to work remotely to the employer, perhaps there should be higher sector-specific minimum wages for ‘front-line’ jobs.

 

In Part II, we said an employer should only be able to deny remote working to those workers whose actual job tasks demand they be on-site, rather than adopt blanket policies on the basis of the nature of that business. For example, a customer-facing retail worker obviously cannot work remotely, but an accountant or HR specialist in that business can. However, there are drawbacks to this approach: from the perspective of the business, it may impede the flow of information and ideas from the conditions ‘on the ground’ to those making managerial decisions. Worse, remote working staff may be unaware of abusive and unsafe working practices on-site (or more easily able to turn a blind eye), and it may be more difficult for on-site staff to report problems. There should be dedicated channels of communication between on-site and remote staff, using trade unions or other worker representatives as intermediaries.

On the subject of trade unions, we are concerned about the impact of remote working on union organising and collective action. For their part, ICTU has already welcomed the shift to remote working, and joined the call for workers to be given a right to work from home. However, we are concerned that it will be more difficult for workers to organise collectively - even to be aware of shared grievances, never mind collaborate to address them - without seeing each other in person. Workers might also be reluctant to communicate with each other and with trade union representatives, if remote working generates a ‘paper trail’ accessible to management. Some of these issues have already been identified by the UK Trade Union Congress, and ETUC has gathered evidence of employers misusing provisions of the GDPR to limit the ability of trade union organisers to contact workers by electronic means. Again, we see a need for engagement between management and unions to ensure all workers have access to effective representation, even while working remotely, and the freedom to operate confidential channels of communication between workers themselves, and with their representatives. Of course, this links into the more general privacy concern which has been identified elsewhere.

 

 

Gender equality

Women still carry the bulk of caring and domestic responsibilities, which they must balance alongside their obligations to the workplace. Far from being corrected by the presence of male partners at home during the pandemic, this has actually been exacerbated, with a majority of Irish women noting that their already disproportionate burden has only increased during the past three lockdowns. The result is that women have been less able to devote as much time to their professional work as their male colleagues, who are less encumbered by unpaid domestic labour. 

 

Childcare in Ireland is among the most expensive in the world, and there is no public system to speak of. What support the government does provide is limited by time, or income, or both meaning it is out of reach for a vast number of families for the majority of their child’s development. Similarly, at present in Ireland there is no legal obligation on an employer to pay women during their maternity leave, and in general Irish women only receiveabout 9 weeks of paid leave. On top of this, women who take longer maternity leave are perceived as less committed to their careers, are less likely to receive pay increases or promotions, and the risk of dismissal increases. Despite this, even where parental leave can be shared women still take more time off than their male partners, thus risking their own career advancement. The creation of a right to work from home appears to enable individual working women to compensate for these structural deficits without sacrificing their careers entirely.

 

The danger is that by increasing flexibility for women - which ought to improve their standing in the workplace - working remotely could become an expectation for women, that could be relied on in place of proper accommodation and policy in the areas of childcare and maternity leave, both significant barriers to advancement for women at work. Remote working offers an ‘easy out’. For the government, the creation of a flexible working arrangement for women prevents them from having to meaningfully engage with the lack of childcare infrastructure in Ireland: the need to provide this becomes less pressing when women are able to work from home and provide their own childcare. For employers who might otherwise have provided childcare, they may now simply expect female employees to exercise their right to work from home where before they might have had to provide some other flexible arrangement (or on-site childcare). Women themselves may feel under pressure not to take adequate parental leave because they can work remotely, with detrimental effects on children’s welfare and mothers’ health, as well as their professional development. Finally, as noted male partners are reluctant to take time off work for caring responsibilities, even where allowed to. This is potentially replicated with the right to work from home, where female partners will be expected to disproportionately work remotely in order to maintain their childcare obligations. 

 

Some of these fears are alluded to but not necessarily dealt with in the government strategy. While flexible working conditions can increase women’s involvement in the workplace, ‘flexible conditions’ must not become a by-word for the expectation that women will not insist on statutory rights, or where they are allowed to become a stop-gap for meaningful, structural change. Whilst the strategy does note the need to ensure equal uptake among genders, as well as gender awareness and equal access to promotional opportunities, it remains to be seen how these rights will be protected under the forthcoming legislation.

 

Disability

We said in part I that working from home should not be based on an extension of the current provisions for reasonable accommodation under the Employment Equality Acts. Among the dangers we identified is that employers may seek to rely on remote working to discharge their obligations to provide reasonable accommodation in a way that could exclude people with disabilities from the physical workplace. We foresee a situation where a person with certain kinds of disability notifies their employer of the need for physical modifications within the workplace (ramps, lower desks, wider doorways, accessible bathrooms, etc), but the employer responds by allowing the employee to work from home rather than making these modifications. There is an obvious financial incentive on the part of employers to pursue this option, and a disincentive for workers with disabilities to insist on physical modifications for fear of being labelled ‘difficult’. The duty of reasonable accommodation does not apply where it ‘would impose a disproportionate burden on the employer’: our concern is that employers will argue the cost of physical modifications is ‘disproportionate’, given that the option of remote working is available. Of course, many people with disabilities have long been calling for greater provision for remote working and would benefit from it becoming more normalised; but it would be unacceptable to allow employers to thereby shirk their responsibilities to make physical workplaces more accommodating. That would lead to the further marginalisation of people with disabilities. This concern has been noted in the government strategy, but with no proposed solutions as of yet.

 

Conclusion

There is much more we could say about the promises and pitfalls of working from home. Throughout these posts, we have tried to emphasise that making remote working available to as many workers as possible could bring huge benefits - if workers are empowered to make the choices about how it operates, and protected from employers’ efforts to take advantage of remote working for their own financial benefit. There are risks associated with any changes in methods of production, and one goal of labour regulation must be to minimise the extent to which these fall on workers. As noted above, the government strategy does fall into some of the traps we have identified in this post. We call on the Department to reflect these concerns in the forthcoming legislation.

 

Niamh Egleston is a Research Assistant at the School of Law, Trinity College Dublin and recently completed an LLM at the London School of Economics. 

 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory.

 

Suggested citation: Niamh Egleston and Alan Eustace, ‘“Baby, You’re the Boss at Home”: Giving Employees the Right to Work from Home - Part III’ (18 January 2021) https://tcdlaw.blogspot.com/2021/01/baby-youre-boss-at-home-giving.html