The Covid-19 pandemic may have generated widespread uncertainty and turmoil but as we emerge from what will hopefully be our final lockdown, one thing is clear – having seen a large-scale migration to working from home for effectively all office workers since March 2020, the workplace landscape has fundamentally evolved and stands forever changed.
Both employers and employees have come to appreciate the different benefits that can be attained through home-working such as greater flexibility, a reduction in commute requirements and lower overhead costs. However, the drawbacks of full-time home-working such as lack of integration and collaboration, removal of the boundaries between work and home life, and decreased oversight of employee productivity, are also apparent and can present their own challenges.
It has been suggested that working from home could become the ‘norm’ for office workers and that this may herald the ‘death of the office’ – but according to the expert corporate legal team at Holmes, that is a premature, impractical and unrealistic assessment of what lies ahead for office workers and their employers given the need to transition working practices to accommodate training, supervision and efficiency in this ‘new’ model.
The legal team at Holmes, one of Ireland’s leading law firms for corporate and public service clients, believes that a blend, in the form of hybrid working, is set to become the new working practice.
The team in Holmes has outlined five key decisions CEOs must consider now as they navigate a new and changing corporate environment to ensure maximum efficiency and productivity:
1. Data security is crucial
The hybrid model multiplies data security risk. Every employer must ensure that any devices that employees are using to work remotely have adequate security software installed. The requirement for training of staff and the existence of checks and balances for proper enforcement of policies and procedures is increased further.
The recent cyberattack on the HSE demonstrates and highlights the catastrophic and far-reaching implications that cybercrime can have on an organisation. Personal operations and clients can all be enormously impacted by denial-of-service attacks, compounding reputational risks for such companies.
“Err on the side of going above and beyond when assessing your cyber security requirements and plans, including when devising the budget,” advises legal expert Michael Murphy with Holmes.
“The HSE is now facing a bill of in excess of €100 million as a direct result of the HSE cyber incident. That demonstrates the false economy that organisations make by under-resourcing or underestimating cyber security. Getting your data security, and cyber security in order together with supporting insurance policies is a critical business issue. That’s where we help clients; from getting your policies and contractual frameworks in place to mitigating the risk of an incident occurring, through to the provision of emergency incident response and post incident remediation, including notification of the Data Protection Commissioner within the stipulated 72-hour window, thereby limiting the impact of claims, regulatory action and litigation on your business.”
2. Office space
The physical space needed for work is a looming issue. According to Sandra Egan, partner with Holmes, for corporates, being a hybrid workplace means being able to manage and effectively plan and cater for the percentage of your employees who are working remotely and how often they wish to or may continue to do so.
“Our clients have found that employees returning to the workplace require more space per capita than pre-pandemic,” says Egan.
“This has offset the perceived excess capacity due to remote working. The needs of clients with commercial property have in turn changed. Some clients have required additional space to provide the safe distancing necessary to safely accommodate their employees whilst others are looking at the flexibility of co-working hubs, and yet more are divesting of space. It is really down to the business to crunch the numbers,” outlines Egan.
3. To hybrid or not to hybrid?
Although your organisation may have successfully operated an informal hybrid working arrangement in the intervening periods between lockdowns reflecting the uncertainty that existed at that time, a formal move to hybrid working is an employer mandated model. To that end, it would constitute a change to employees’ terms and conditions of employment. This means that you will have to discuss and agree the move to hybrid working with affected employees. It will also be prudent to consider implementing both a trial period and the ability to end or modify the hybrid arrangement if it is deemed to be unsuccessful either from the perspective of the corporate entity or indeed for the individual concerned. As the vaccine rollout takes place, working with employees in relation to their vaccinated status and the data protection challenges that this can present will require careful collaboration between employers and employees in discussing any large-scale return to the physical workplace.
According to Shane Costelloe, associate solicitor and employment law specialist, “There is no one-size-fits-all model when it comes to an organisation’s workplace,” highlighting the sectoral differences that can exist.
“Your organisation will have to consider the specific method for documenting hybrid working arrangements,” he states, suggesting that “employers may wish to draft a stand-alone hybrid working policy that would set out the specific workings of a home and office work blend, addressing key areas that will be impacted by the hybrid arrangement for example health & safety or working time. Alternatively, an organisation may prefer to formally vary an employee’s terms and conditions of employment on a permanent basis, often a tricky conversation.”
Staying up to date with Government advice, and having a system of consultation with employees to canvas their views, will be important aspects of proper planning for employers.
4. Governance in a post pandemic era
Some organisations have found that virtual board meetings are better than in person meetings. The obvious benefits include reduced travel and increased attendance. However, from a governance perspective there are many practical issues which boards need to consider if board meetings are to be held remotely on an ongoing basis, as outlined by Harry Fehily, managing partner with Holmes, who specialises in corporate governance and commercial litigation. The rules of the organisation’s constitution will set out specific requirements in relation to board meetings, the number of people required for a quorum, and how resolutions are to be passes.
“It has become commonplace to have board meetings where all directors participate by audio and video conference,” says Fehily, noting that, "If the constitution does not permit directors who are not present in person to form a quorum or pass resolutions then additional ratification may be necessary. I would encourage every organisation to review their suite of governance policies to ensure that they do not fall foul of their own policies in this new era.”
5. Health and safety obligations do not stop at the office door
If your employees are working from home, the home becomes a workplace. So, you must therefore take action to ensure your employees work in a safe environment both in the office and when working remotely. According to Robert Kennedy, partner and insurance litigation specialist with Holmes, the postural issues associated with working at an improperly positioned screen and inappropriate makeshift desk could lead to a significant increase in litigation against employers.
“A wise move is to assess your employees’ home office, or workstation designs in conjunction with your employees. Doing so will reduce the risk of injury and show you complied with your obligations under the health & safety legislation. This process should also include feedback from the employee,” says Kennedy.
It’s clear that there are more challenges for employers to navigate but there are also opportunities to seize. Businesses cannot afford to be complacent when the risks remain so high. Preparation and protection are paramount to ensure compliance, and will help to ensure the success of hybrid working arrangements for office workers and their employers going forward.