Since the onset of Covid 19 in March 2020 many employers of businesses that were able to continue to operate, have had to put in place measures to allow for remote working for their employees.
At present, under Irish Employment Legislation there is no legal right to insist that he or she be entitled to work remotely.
However, in a recent landmark WRC case an employee received compensation on the basis of being able to prove constructive dismissal as a result of an employer’s unreasonable request to insist that the employee work in the office.
This was a case where the employee was working for a service provider to a university and was responsible for supporting the management of student accommodation for a client university. The employee in question worked in a small office with two other employees. She had, over a period of weeks , experienced stress and took sick leave due to a concern of being exposed to Covid 19 while working in such close proximity with her colleagues. She voiced these concerns to management by email, but she felt that they were ignored. Her husband suffered from severe asthma and she felt that her conditions also imposed an unacceptable risk to him.
Herself and her colleagues suggested that they operate on a rotational basis whereby one of them would be in the office at any given time while the other two worked remotely. This request was refused.
The employer argued that as the employees had never sought to work remotely prior to the pandemic and as they had put in place health and safety measures i.e. provision of PPE, screens between desks and realignment of desks and that no other employees had raised concerns that their request would be refused. They suggested that if they wished to absent themselves from work, they could consider whether they were entitled to state benefit. The employee brought a case to the adjudication officer in the WRC on the basis of constructive dismissal. As a general rule it is very difficult to employee to prove that he or she has been constructively dismissed. In order to do so he or she must prove that the action/behaviour of the employer has been such as to amount to a fundamental breach which goes to the root of the Contract.
Such a finding was held in this particular case.
The adjudication officer held in favour of the employee and made a finding that she had been constructively dismissed on the following three grounds:
- The suggestion of the employees that they rotate their days so as to avoid being in close contact was a reasonable request in the circumstances.
- There was no evidence that the university in question had objected to remote working and thus no adequate reason was given for the refusal of the employee’s request.
- The provision of PPE did not absolve the employer of their duty to eliminate risks in the workplace and the small size of the office in question was a significant factor and should have been considered more carefully by the employer.
The amount of compensation awarded was low i.e. €3,712. This was because the employee was able to find alternative employment and so her loss was minimal. Under the Unfair Dismissals Act an application for compensation for unfair dismissal or for wrongful dismissal is limited to the economic loss suffered by the employer.
If the employee in this case had brought a claim under Section 27 of the Health and Safety Act 2005 which can be brought in circumstances where an employee alleges, he/she has been penalised as a result of bringing health and safety concerns to the employer’s attention then the award would not have been limited by the cap which is a feature of claims brought under the Unfair Dismissals Act.
Summary
It is very important that when considering decisions to grant remote working that the employer takes the following factors into account –
- The employer should have a robust remote working policy
- The employer should have a risk assessment and safety statement in place
- The employer should ensure that internal grievance procedures adequately address health and safety concerns
- Take into account employee’s suggestions and input into health and safety issues
- Requests for remote working should be considered carefully and also on a case-by-case basis
For any further advice in relation to employment matters, please do not hesitate to contact Brendan Dillon or Conor White on 01-2960666
