by Maeve Griffin, Solicitor at Fieldfisher
In what is likely the first in a string of Covid-19 related claims, the Workplace Relations Commission (WRC) awarded €3,712 to an office-based worker after her employer refused her request to work from home during the first Covid-19 lockdown last March.
The WRC found that the employee had “no real option but to resign” as her employer failed to take reasonably practicable steps to eliminate or reduce the risk of Covid-19 in the workplace.
Employer refused request to work from home
The Complainant was employed as a facilities operations co-ordinator based at a university campus. This was a managerial role with a heavy amount of project work.
The Complainant was one of three employees who lodged a formal grievance raising serious Covid-19 related health and safety concerns, including the fact that they were required to work in close proximity in a confined office space with a lack of social distancing. All three colleagues had family members who were in the ‘at-risk’ category.
In an effort to mitigate the risk of Covid-19, the Complainant and her two colleagues requested a rotating roster whereby only one office worker was on site on a given day while the other two worked from home. However, their request was rejected by the employer on the basis that their roles were essential and not suitable for remote working. Instead, the employer committed to putting 27 alternative protective measures in place, including additional managerial support, briefings, personal protective equipment and changing the physical layout of the office.
However, according to the Complainant, 13 of the measures stated as complete had not been in place. The Complainant subsequently resigned alleging that it was having a “great effect on my health and wellbeing” and that the employer’s approach “to the whole situation has been a real disappointment and the lack of care for their employees has left me feeling disheartened and insecure.”
Safety Health and Welfare at Work
The Safety, Health and Welfare at Work Act 2005 sets out the health and safety requirements of the workplace.
Section 8 provides the general duty to ensure “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
Section 8(2) provides particulars, including the duty at subsection (e) to provide “systems of work that are planned, organised, performed and maintained and revised as appropriate so as to be so far as is reasonably practicable, safe and without risk to health.”
Section 8(2)(i) refers to the general principles of prevention and provides “where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
Section 19 requires an employer to prepare a written risk assessment of hazards, including of any unusual risks to a particular employee.
What did the WRC Say?
The WRC stated that Covid-19 is an infectious disease and that the most effective way to address the risk was to eliminate it. The rotating roster was a sensible suggestion that would eliminate, or at least reduce, the risk of transmission between colleagues.
The WRC stated that the employer failed to comply with its health and safety obligations by requiring the Complainant to attend work. In this case, the risk could have readily been eliminated or reduced through ‘reasonably practicable’ steps as suggested by the Complainant.
As such, the WRC held that the Complainant was constructively dismissed as she had “no real option but to resign” and awarded compensation in the sum of €3,742. This was the maximum that could have been awarded to the Complainant as she had secured new employment shortly after her resignation.
This case serves as a reminder to employers of their health and safety obligations. This is of particular importance for employers who require employees to attend the workplace during the pandemic. We recommend that employers review and update their occupational health risk assessment and safety statement identifying the risks to employees and ways to either eliminate or reduce those risks. At a minimum, this should include Covid-19 infection prevention and control measures.
Employers should ensure that any grievances are dealt with promptly and appropriately and give adequate consideration to any suggestions put forward by employees to mitigate the risk of Covid-19.
Employers should also be mindful of the legislation coming down the line regarding the right an employee’s right to request to work remotely. While the details of the legislation are still not clear, it is anticipated that employees will have a legal right to request remote working and that a refusal of such a request must be objectively justified.