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Just last week, a university-based facilities management service provider was ordered to pay €3,712 in compensation to an office-based operations co-ordinator for her unfair dismissal.
She was dismissed in May, 2020. The employee resigned from her job after her request to work from home was rejected. This is the first in what may well be very many Covid-19 related cases to go through the Workplace Relations Commission (the “WRC”).
The WRC Adjudication Officer found the employer had failed to adequately consider and implement the employee’s proposals to reduce the risk of the transmission of Covid-19 in the workplace. The award made would have been greater, if the employee concerned had not secured alternative employment within five weeks from her resignation at a higher pay rate.
Last April the employee raised a formal grievance with her employer, arguing that most of her work could be completed from home, with a rotating presence in the office. The employee sent a photograph to her employer evidencing that she was not able to socially distance from her two colleagues in the workplace. She had family members in the ‘at risk’ category and she was concerned about the health of her family members, as well as her own wellbeing. Her grievance set out that the employer’s refusal to accept her proposal to work from home “increased the infection risk from Covid-19 for all three operations co-ordinators”.
In response, her employer claimed that her job was classified as essential, and the client would not have allowed her to work from home. He went on to say that “Prior to Covid-19 there was never a suggestion that the roles could be performed remotely, and the same situation pertains in a post Covid situation” and that “Each person may absent themselves from work and check if they are entitled to a State benefit. The position will be kept under review, but at present the employer’s position is that the three roles are not suitable for remote working”.
Following this response, the employee sent a letter of resignation to her employer as she felt she had no other option but to resign from her employment with immediate effect.
The WRC determined that the employer did not adequately consider the employees grievance, leaving her with no real option but to resign” and that the refusal to allow her to work remotely to eliminate the risk posed by Covid-19 without qualified justifications “amounts to repudiation of contract” as providing a safe place to work is a fundamental term of the employees contract of employment.
The Adjudication Officer stated: “As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act, and the underpinning health and safety principles.”
Employers should ensure that their grievance procedures are updated and that they are adhered to by all members of management. Employers should further ensure that all grievances are dealt with efficiently and effectively. Grievance procedures are of paramount importance in the workplace as they allow an employee a means to resolve matters of concern in relation to their employment.
If no grievance procedure is in place, employees could claim Unfair Dismissal on the basis that they had nowhere to turn, and no means to resolve the issues that arose during their employment.
2. Health & Safety obligations
Employers have a duty of care, both under common law and statute, to their employees that includes ensuring a safe working environment. They have an obligation to identifying hazards in the workplace, carry out risk assessments, prepare safety statements and to ensure that measures take account of changing circumstances. This is particularly important for employers who require employee attendance during the Covid-19 pandemic.
Employers should ensure their health and safety policies; risk assessments and safety statements are updated accordingly in light of this case.
3. New legislation
Employers should be mindful of the National Remote Work Strategy which was published mid-January and the new legislation recently announced and proposed to be introduced in late September. This legislation aims to provide the infrastructure to work remotely and is intended to afford employees a right to request to work remotely, see article here for further information on the National Remote Work Strategy.
Employers should give adequate consideration to any suggestions put forward by employees to mitigate the risk of Covid-19 and should give justified qualifications for not implementing employees’ suggestions.
About the author: Marc Fitzgibbon, Senior Partner and Head of the Employment Team.
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