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People who were classed as clinically vulnerable during the pandemic will not be able to rely on that status to insist on working from home when restrictions lift, an employment lawyer has said.
urrently people are instructed to work from home where possible, with employers required to facilitate their staff to do so. However, that guidance is set to be lifted in the coming weeks.
Most office workers have worked from home over the last two years, which has ensured that people regarded as clinically extremely vulnerable (CEV) and advised not to leave their homes early in the pandemic can continue to do their jobs.
While the advice to the CEV to shield was paused in Northern Ireland in July 2020, many in that position have continued to stay at home and to take the precaution of shielding regardless of the official policy.
Rosemary Connolly, who runs a practice in Warrenpoint specialising in employment law, said that if and when the restrictions are lifted, people will not be able to rely on previously being termed clinically vulnerable to insist they can still work from home.
“Everything goes back to your contract of employment. And we can take it as read that most contracts of employment pre-pandemic don’t contain any facility for working from home because it largely hadn’t been a thing pre-pandemic,” she said.
“There is no legal entitlement to say, ‘I’m doing my job perfectly well at home, and therefore I’m going to stay at home’.”
However, an employee could make a request for flexible working under the Flexible Working Regulations. “You are entitled to make that and you will be bolstered in your application now because having worked from home, if you can show your productivity hasn’t suffered, then you would be able to say, ‘I’m making this application and the evidential basis for Why it can be done is the fact that I have done it for the past two years’.”
She said employers are required to give consideration to a request and respond with a written outcome. However, they can turn it down if there are firm business reasons as to why it wouldn’t be appropriate.
“But it’s going to be more difficult for employers now to say no. Previously people would have said that their employer just paid lip service to it, or had a knee-jerk reaction to a request by saying ‘that will never work here’.
“They can’t say that any more because it clearly has worked.”
Ms Connolly said that if someone has a condition which amounts to a disability, they could request to be allowed to work from home as a “reasonable adjustment” to their working conditions under the Disability Discrimination Act 1995.
She said employers should take a tolerant approach to requests and also the process of bringing people back into the office, adding: “I always caution people if you just do a blanket knee jerk response, you will fall foul of someone’s legal rights and entitlements.
Owen Reidy, assistant general secretary of Irish Congress of Trade Unions, said he hoped employers would take a “pragmatic and enlightened” approach to requests to work from home.
“I can see cases going to tribunal, if an employer is being hostile and bolshy and a worker feels very vulnerable and can demonstrate that vulnerability through medical certification,” he said.
Mr Ready said the flexibility to work from home had been a benefit which had emerged from the pandemic which should not be lost. He said trade unions were using a hybrid working policy document from the Labour Relations Agency as a template for dealing with potential issues.
“Since 2015, employers can request flexible working and you’ll see more of that as we emerge from the pandemic,” he added. “Most of us want to go back to life pre-pandemic but we shouldn’t throw baby out with the bath water. It’s about being just clued in and smart as an employer.
“There are workers who have enjoyed a hybrid working arrangement and should have the continued opportunity to do that.
“If it isn’t broken, why fix it? It’s about employers and unions working together in an enlightened way to avoid workplace conflict on this issue.”
Mr Reidy fears there could be “a minority of control freak employers who’ll say to staff ‘I can’t wait until you’re under my nose five days a week from 9am to 5pm even though you’ve been working well for two years ago at home’.”
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