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03 February 2021
The Workplace Relations Commission recently found that an employee had been unfairly dismissed when her employer rejected her request for remote working in response to the COVID-19 pandemic.
The employee worked for a facilities management company and normally worked on-site at a university client's premises. Her role involved checking students in and out and managing maintenance issues. The employee and two colleagues raised health and safety concerns associated with the COVID-19 pandemic as early as January 2020 or February 2020. She said that her employer did not formally meet them regarding these issues and their concerns were never addressed. This caused all three employees to be stressed and they went on work-related stress leave.
In April 2020 the employee and her colleagues lodged a formal grievance but there was no meeting or engagement with them about this. The employee was particularly concerned about the risk of infecting her husband and father in law, both of whom had underlying health conditions.
After the period of work-related stress leave, the employee returned to work in May 2020. She and her colleagues met with their employer, which briefed them on the measures that had been taken in the workplace to mitigate the risk of infection. As part of her grievance, the employee requested that she be allowed to work from home during the pandemic. She suggested that she could rotate being present on-site with her two colleagues to ensure that on-site duties were sufficiently covered. Her employer wrote to her stating that:
[p]rior 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. 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 the meeting, the employee resigned. She complained to the Workplace Relations Commission, stating that:
During the Workplace Relations Commission hearings, the employee referred to a photograph taken in a small office showing her and her colleagues working in close proximity, which she said had been taken on 17 April 2020.
The company argued that the employee's job required her to be on-site and that the client would not have accepted her carrying out her role remotely as it involved dealing with students on campus. The employer went on to explain that:
The employee was an essential worker and the provision of student accommodation had been identified as an essential service.
The adjudication officer decided that the employee had been constructively dismissed and awarded her €3,712.50 in compensation. The reason for the relatively low financial award was that the employee had secured a new job at a higher salary within five weeks of resigning, so her financial loss was limited.
In the adjudication officer's view, the employee had set out a clear grievance to her employer which suggested how the work could be done in the safest way possible, but this was not adequately considered. The proposal of a rota system for the three colleagues, to ensure that one person was always on-site while the other two worked remotely, was "eminently sensible" given the health and safety risks and the potential to reduce COVID-19 transmission. This was particularly the case given that most of the role could be performed by computer and a significant portion of the online work could have been progressed remotely. In the absence of any objection from the client, the employer did not provide an adequate explanation as to why it did not agree to the proposal.
The adjudication officer concluded that the employer's requirement that the employee attend the workplace, without adequate consideration of how it could seek to eliminate the risks, amounted to a repudiation of the employee's contract. Providing a safe place of work was a fundamental term of the contract of employment. The employer had failed to comply with health and safety principles by first seeking to eliminate risk, causing the employee to attend work in greater danger. That risk could have been readily eliminated or reduced through "reasonably practicable" steps, as the employee had suggested. Therefore, the employee had no real option but to resign in the circumstances.
This decision does not mean that there is any general right to work from home during the COVID-19 pandemic, but it demonstrates the standard that the Workplace Relations Commission will most likely expect employers to reach in refusing remote-working requests in the current circumstances. In this case, the employer refused even to trial the suggestion put forward by the employee to see whether it could work. Employers will be expected to consider remote-working requests thoroughly and to have strong, reasonable grounds for refusing to facilitate them.
The present legal position is that, in theory, all employees can ask their employer to let them work remotely. However, while government guidance on this is available, there is no legislative framework for how requests for remote working should be handled. All this is set to change with the roll-out of the government's National Remote Working Strategy, which will involve a new legislative right to request remote working and a new code of practice on employees' right to disconnect (for further details please see "Making Remote Work – the government's National Remote Work Strategy").
When the new legislation is in place, employers will not necessarily have to agree to all remote-working requests, but they will have to show a clear and objective reason for refusal. Employees could have a claim under equality legislation if they believe that their employer's refusal to allow them to work remotely is discriminatory. The Workplace Relations Commission's determination in this case may also encourage employees to make claims for constructive dismissal, in circumstances where they feel that their request has been unreasonably rejected by their employer and any subsequent grievances have been handled incorrectly.
Remote-working requests will become commonplace in workplaces in the coming months, so employers should start to consider:
Constructive dismissal claims are often hard for employees to win in Ireland. The outcome may encourage more employees to bring constructive dismissal claims where they feel that their employer has not adequately addressed their health and safety concerns, especially as workplaces are now seen as high-risk environments for COVID-19 transmission. While this is probably the first of the COVID-19-related employment claims to come through the Workplace Relations Commission system, many more are expected.
For further information on this topic please contact Linda Hynes at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (firstname.lastname@example.org). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
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