Question
I work for a foreign company, our office in Ireland is quite small and the head office doesn’t pay much attention to us.
Our official work from home policy is three days in the office and two days at home, but I’ve been going in only one day a week and no one has ever said anything to me for the last two and a half years.
However, they are starting to clamp down on it now. Can I reject this since they haven’t had a problem with it for the last two and a half years – kind of like an implied contract term?
Answer
To answer this query, we sought the expertise of those working in HR and employment law.
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The policy specified by the reader seems to have become the norm across both the public and private sectors, says independent HR consultant and workplace investigator Michelle Halloran of Halloran HR Resolutions.
“From a HR perspective, it’s healthy to have people come into the office a couple days of the week, from a personal, social and wellbeing point of view, and it’s good practice for the business for team meetings and brainstorming,” she says.
However, the issue is not black and white, as some employees such as this particular reader tend to prefer more time at home, while others may have personal circumstances which require them to do so.
“If head office didn’t know and they discovered that people in their Irish office weren’t coming into the office and they feel there is a business need for people to come in a few days per week, that’s a reasonable enough approach,” she says.
On the other hand, if it had been agreed locally that they could come in once a week, regardless of the overarching policy, and now management is changing its mind two and a half years later, “I would question that”, she says.
Halloran advises engaging with the employer, allowing the reader to explain their circumstances or reservations and aim to seek a compromise, which would perhaps involve spending two days a week in the office rather than three.
“The key word here is flexibility – employees and employers have to work together to make this work,” she says.
For a term to be implied into the contract, it must be “notorious”, says Anne O’Connell, principal of employment law firm AOC Solicitors.
[ Return-to-office mandates are the ‘opposite’ of evidence-based managementOpens in new window ]
This means that “even the man on the street must know about it, basically”, she says.
“It has to be so well-known that it’s not even a question,” she says, which may not be the case here, depending on how vigilant or accepting management has been.
“If there’s a difficulty with the arrangements being enforced, they’ve got to talk to their managers and HR, maybe even going back in more often gradually.
“But if the business wants them back in and that’s what’s in their contract, they’re the conditions that were accepted,” she says.
O’Connell says employers have “every right” to enforce terms specified within the employee’s contract, and if that does not suit them, applying officially for bespoke work from home arrangements may be the best route to take.
The main option available outside of a casual discussion is to apply officially under the Work Life Balance and Miscellaneous Provisions Act.
The law, introduced in March, provides an opportunity for the employee to set out their reasons in writing for needing certain hybrid arrangements, and to state why they are confident they can fulfil their role from home.
Employees can make a request under this legislation once they have six months of continuous service, and each request is considered on a case-by-case basis. The outcome depends on business requirements, however, and there is no guarantee the employer will agree.
If you have a work-related question you’d like to ask our team of experts, from how to deal with difficult colleagues and big workloads to career progression, you can submit your question in the form below.
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