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The Right to Work from Home and Constructive Dismissal During Covid-19 - February 2021

Due to the continuing uncertainty around Covid-19 and how this will impact the Irish workforce in the long-term, the right to work from home has become a topic of legal interest. From questions around statutory obligations placed on employers and employees, to issues around the provision of equipment and the elimination of health and safety risks in

the workplace, the topic has never before gained such traction.

A new Workplace Relations Commission ruling on the issue of constructive dismissal during the pandemic has shed light on what employees might expect going forward, both at home and in the workplace. This ruling has been published just as the Government announced that it plans to introduce legislation giving workers the legal right to request working from home.

Health & Safety Hazards in the Workplace: Mitigation ≠ Elimination

In a decision dated 7th January 2021, the WRC ruled in favour of an employee who had been constructively dismissed. The employee had no choice but to resign from her position as an operations coordinator at a university in May 2020, after her managers ignored her concerns about working in close proximity to her colleagues with the first reported case of Covid-19 in Ireland two months prior. The employee expressed, in writing, to her employer that it wasfeasible for her team to partially work from home, since worked primarily through different IT systems with the provided laptops they had been provided.

Although it was acknowledged that the respondent had suggested implementing physical distancing and PPE measures, the WRC ruled that such mitigation of the spread of Covid was not equivalent to eliminating the risk. The law on this is set out under Section 8 of the Safety, Health, and Welfare at Work Act. The section states that an employer has a Duty of Care to ensure a safe working environment “so far as is reasonably practicable…”. Schedule 3 of this Act sets out that the first and primary principle for prevention of hazards is “The avoidance of risk”. In the WRC’s ruling, it was outlined that “…personal protective equipment is the last resort and least effective measure”, and that by prioritising this over the ability for the employees to work from home (i.e. total avoidance of risk), this was contrary to the hierarchy of health and safety duties imposed on the employer and employee by statute.

Constructive Dismissal: Can you be dismissed for seeking to work from home during the pandemic?

A major factor in the WRC’s final decision was that the employee and her team worked primarily through email and IT systems, noting that “…this was something… [that] …could have been done remotely.” The equipment had been provided by a client, who had not opposed the idea of the staff working from home. This was also considered by the adjudicator in this case.

The key factors for ruling that the employee was constructively dismissed were:

1. Reasonableness – was it reasonable, given the conduct of the employer, for the employee to leave? This is established in Conway v Ulster Bank UD474/1981

2. Contract – where the employer’s conduct is such that it constitutes a breach of the contract, the employee may consider themselves free from performing any further. This is established in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.

A party may decide to rely entirely on either one or both of these legal tests, in cases of constructive dismissal.

What does this mean for the Right to Work from Home?

On Friday 15th January 2021, Tánaiste Leo Varadkar announced plans to legislate the legal right for people to ask their employer to work from home, even after the end of the Covid-19 pandemic.

Based on the deciding principles outlined in the aforementioned WRC case, it is likely that employers will have an even greater responsibility to ensure the total avoidance of the spread of Covid-19 and other similar infectious diseases. Thus, simply providing PPE and hand sanitizer will not suffice where it is possible to allow employees to work from home. The Government’s proposal to legislate on this right will likely protect workers from similar constructive dismissal cases, where a person formally requests to work remotely on the basis of health and safety grounds.

If you, or somebody you know, was let go unfairly or suffered as a result of having your health and safety concerns ignored at work, contact McErlean Weir. We can advise you further and assist you with these issues.

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