Employment Law has been an area of turbulence in the COVID-era for employers. As “levels” and restrictions come and go, the challenges faced by organisations are greater, in order to ensure that a safe and compliant working environment exists. This will be of great significance for building talent for the future to reflect changes in the wider economy as it adapts to a post-COVID landscape. Here are some of the key things to consider, that have arisen in the last number of months:
1. Annual Leave and Quarantine
Returning from “Green-” and “Red Zone” countries
Annual Leave can be used in lieu of quarantine if:
There is an internal policy or memorandum requiring this
If the employee is given 30 days notice before the date of leave
If an employee has no annual leave left:
The employee can be placed on unpaid leave if there is an internal policy or memorandum requiring this
If there are no such internal policies in place, or notice is not given, the employer risks a claim for an unlawful deduction in wages.
Notification of Travel
Notification of travel to another country is only relevant for “Red List” countries. There must be a clear communications policy in place and any non-compliance with same may lead to disciplinary action. However, employers should be mindful of the proportionality of any decision taken to discipline employees, as the purpose of annual leave is to provide the employee with rest and recreation. While the employer has discretion of the timing of when said annual leave should be taken, they have no control over the particulars of how an employee spends their time during annual leave.
2. Raising COVID-19 Concerns
In recent weeks, there has been a significant rise in Employees reporting COVID-19. This has led to instances whereby employees do not feel safe in the workplace, due to the risk of contracting COVID-19. Section 27(3)(f) of the Health, Safety & Welfare at Work Act 2005 protects employees in the event that:
Employee reasonably believes to be serious and imminent danger
The employee cannot be penalised or threatened with penalisation for raising concern, for leaving, proposing to leave or refusing to work or taking appropriate steps to protect themselves
Whilst this belief must be reasonable, employers should be slow to reprimand the employee who may hold a genuine belief that they are in “serious and imminentdanger”, regardless of whether they are in fact in no danger whatsoever. Otherwise, any reprimand may constitute penalisation for the purposes of the 2005 Act. In this case, penalisation would be defined as meaning
Suspension, dismissal, demotion, transfer of duties, change of location of place of work, reduction in wages, imposition of disciplinary, reprimand or intimidation
It is therefore of paramount importance that the employer be mindful of their responses when dealing with such cases, where the employee feels they are at risk of contracting COVID-19 in the workplace.
3. Reasonable Accommodation & Remote-working
As remote working has now become the new norm for many workers, employers must take into consideration the facilitating employees who may request to work from home for the foreseeable future. Section 16 of the Employment Equality Act may provide some protection and create a right to work from home for employees and could be used as a warning sign for employers, whereby one case, in particular, saw an employee who suffered from anxiety rewarded with 18 months salary when the employer failed to consider what individual appropriate measures were available for the employee in question who needed to use their own toilet.
A recommended approach for employers could therefore be:
Adapt home working requirements where possible
Identify at-risk employees
Actively deal with requests for remote working
Have robust and uniform procedures
Defer to medical opinion/assessments
Any accommodation should be offset against the requirements of the employee’s duties
4. Workplace Inspections
Up to now, the Health and Safety Authority has been the government agency responsible for ensuring compliance with COVID-19 precautions in the workplace, remitted under the Return-to-Work Safely Protocol.
In order to prepare for such inspections, the following can be considered:
Has a COVID-19 response plan been prepared?
Have employees received COVID-19 induction training?
Are adequate COVID-19 control measures in place?
Has a COVID-19 worker representative been appointed?
As we continue to navigate COVID-19, working conditions will of course change and new demands and scenarios will present themselves. However the above is a top-line overview of some of the key Employment Law issues faced by employers in Ireland as we head towards 2021.
Regard should be given to the latest updates published by the HSA, the more recent of which was published on the 20th November 2020, where the Return to Work Safely protocol was published containing significant detail for employers to consider in light of level 5 easing in the forthcoming weeks.
Please be advised that this material is for guidance purposes only and does not constitute legal advice, nor should it be considered as a substitute for legal advice.
If you have any questions or issues regarding Employment Law, do not hesitate to reach out to us or Alastair Purdy & Co. Solicitors.
We would like to remind you that Collins McNicholas is here to support your business throughout these uncertain times. If you have any questions or issues, please do not hesitate to reach out to us.
Senior HR Services Consultant