The Workplace Relations Commission (“WRC”) published its first decision in relation an employer’s obligations to consider a request to work remotely as part of its duties to protect employees’ health, safety and welfare at work during the Covid–19 pandemic.

Employers and employees have spent almost a year adapting to a new way of working with a large proportion of employees working remotely in line with Government guidance to deal with the Covid-19 pandemic. While remote working is a topical issue for employers and employees alike, there is no legal right to work remotely in Ireland.

The Government’s recently published ‘National Remote Work Strategy’ seeks to regularise remote working arrangements in a post Covid world and will introduce a legal right to request to work remotely later this year. However, employers are currently left dealing with the issue of remote working arrangements in response to the Pandemic and what obligations this imposes on employers under the Health and Safety at Work Act, 2005 (“2005 Act”) and the Organisation of Working Time Act, 1997 (“1997 Act”). One of the issues in this area, which has recently been considered by the WRC is the extent to which an employer should consider a request by an essential worker to work remotely so as to mitigate the risk of him/her catching Covid-19.

Background to recent WRC case

This issue was considered by the WRC in the case of An Operations Co-ordinator v A Facilities Management Service Provider. In this case the employee worked as an operations coordinator for a management company which provided facilities services to a third level institute. The employee was based in a shared office on the institute’s campus and she oversaw the accommodation needs of the students living on campus.

The employee was deemed to be an essential worker and was, therefore, required to attend the shared office on a daily basis during the Pandemic. The employee raised health and safety concerns and requested to work remotely. This request was turned down by her employer due to the essential nature of the services. The employee and her two colleagues maintained that the majority of their work was project management and could be carried out remotely. However, the employee suggested that a rota be put in place to ensure that an employee attended on site each day to deal with any queries arising from the students. The employee argued that the rota prevented the need for all three employees to share the small office and assisted in preventing the spread of Covid-19 in the workplace.

The employer refused to entertain this suggestion and the employee was certified as unfit to attend work for a six week period due to work related stress. On her return to work, the employer had put in place safety measures such as the provision of hand sanitiser, masks and screens in the office. However, the employer continued to refuse to allow the employee to work remotely, resulting in the employee raising a formal grievance in relation to her concerns. The employee’s grievance was not upheld and she resigned from her employment in May 2020 on grounds of constructive dismissal and brought a claim to the WRC for unfair dismissal.

WRC decision and constructive dismissal

In its decision published in January 2021, the WRC acknowledged that the employee and her colleagues were carrying out essential services. The WRC also acknowledged that the case does not relate to a general right to work remotely but, rather, must be dealt with in the specific circumstances of the Pandemic. The WRC noted that Covid-19 amounts to a biological hazard and, therefore, the employer has particular duties to ensure the health and safety of employees at work under the 2005 Act.

The WRC put emphasis on the fact that a sensible solution was put forward by the employee and her colleagues in the form of the rota. The WRC remarked that it was striking that the employer didn’t even trial the rota which would have eliminated the employee’s concerns and at the same time resulted in a physical presence on campus on a daily basis.

The employee had resigned from her employment on grounds of constructive dismissal. Constructive dismissal cases can be difficult cases for employees as there is a reversal of the burden of proof. This means that it is up to the employee to show that they had no option but to resign from their employment due to the unreasonable behaviour of their employer or as a result of a breach by the employer which repudiates the contract of employment. A fundamental element of succeeding in a constructive dismissal case is that an employee must show that the employer was aware of the issue and that the employee exhausted the internal grievance process before resigning.

In this case, the WRC held that the employer’s behaviour in refusing to allow the employee to work remotely after she raised a grievance and exposing her to the risk of contracting Covid-19 amounted to both unreasonable behaviour and a repudiation of her contract of employment and, therefore, the employee had been constructively dismissed. In coming to this decision, the WRC noted that the provision by the employer of PPE such as masks and protective screens did not eliminate the risk of contracting the disease.

The WRC upheld the employee’s claim for constructive dismissal. In this case, the employee had found new employment within five weeks at a higher salary. Therefore, the WRC was limited in respect of the compensation it could award based on her financial loss. The employee was awarded €3,712.50 which was her loss of earnings during the five-week period prior to commencing her new job.

Lessons for employers

It is important to note that, in this instance, the employee brought her case under the Unfair Dismissal Acts, 1977- 2015 (“UD Acts”). Under the UD Acts, compensation is limited to actual economic loss suffered by an employee. Consequently, there are no damages awarded for general pain or suffering. However, the employee could have brought a claim under Section 27 of the 2005 Act. This section prevents an employer from penalising or dismissing an employee for raising a complaint in relation to safety, health or welfare at work. There is no cap on the damages which can be awarded if an employee succeeds under Section 27 of the 2005 Act.

This case makes it clear that employers should carefully consider all requests to work remotely, even if a service is considered essential as it may still be possible for the particular role or part of it to be carried out remotely.

If employees do raise grievances in relation to health and safety issues, these must be considered carefully to avoid exposure under the 2005 Act. In particular, any suggestions put forward by employees should be reviewed fully.

Members of the Employment & Employee Benefits Team will be discussing remote working and other topical employment issues at our Employment Law Update on 24 March 2021.