Irish employee succeeds in first Covid-related employment claim

The case is the first example of a claim for unfair dismissal in Ireland related to the coronavirus pandemic.

The employee was a facilities operations coordinator for a facilities management service provider from 2014 until 12 May 2020. Her role involved co-ordinating student accommodation on-site at her employer’s client, a university. She took four weeks of certified sick leave following what she described as her employer’s refusal to address Covid-19 related health and safety concerns that were raised about the workplace.

The employee said that it was only after her return from sick leave on 11 May 2020 that her employer did anything to address her concerns regarding Covid-19 and the formal grievance which she had lodged in April. She met with her employer, who briefed her on the health and safety measures that were to be introduced.

The employee noted she had raised a request to work from home as part of her grievance as some of her close family members were in the “at risk” category. She suggested that she and two other colleagues could rotate their presence in the office. However, her employer said remote working was not possible and that it had provided PPE, installed screens and warning tape and had changed the physical layout of the office.

The employee felt that her concerns had not been adequately addressed and many of the workplace precautionary measures that had been promised were not in place. As a result, she resigned on 12 May 2020.

The WRC was satisfied that both the contractual and the reasonable conduct tests for constructive unfair dismissal were met and that the employee was entitled to consider herself constructively dismissed by her employer.

The WRC found that Covid-19, as an infectious disease, constitutes a biological hazard and that there are duties placed on both an employer and employee arising from health and safety legislation. Compliance with these statutory duties was an implied term of the employee’s contract of employment and significant non-compliance by the employer could represent repudiation of that contract or mean that it was reasonable for her to resign.

The WRC awarded five weeks’ pay, totalling €3,712.50, in compensation, as the employee had found new work five weeks after her resignation.

Employment law expert Jason McMenamin of Pinsent Masons, the law firm behind Out-Law, said: “While this case does not have the effect of establishing a right to work remotely, employers should be conscious that remote working is likely to become a central feature of the future workplace. Consequently, employers should keep their current employment policies under review in light of the expected reform in the remote working, right to disconnect and flexible working areas.

“Employers should also be cautious to strike a balance between compliance with their duties under health and safety legislation and dealing with requests from employees to work remotely. As this case demonstrates, employers who insist on their employees’ attending at work, must ensure they have adequate health and safety measures in place and can demonstrate compliance with their health and safety obligations,” McMenamin said.

The Irish government published its national remote work strategy last month. The strategy aims to provide legislation which would grant employees the right to request remote working and to introduce a code of practice on the right to disconnect.