Covid-19, Remote Working and Unfair Dismissal

Introduction

A recent case before the Workplace Relations Commission (WRC) (ADJ-00028293) considered whether an employee was entitled to resign her position, following her employer’s refusal to allow her to work from home, having raised concerns about contracting Covid-19 in the workplace.

Background

The employee commenced employment in May 2014 and resigned in May 2020. The employee and two colleagues had been on certified sick leave following what they say was their employer’s refusal to address Covid-19 related health and safety concerns they raised about the workplace. The employer denied this and further denied that the employee was entitled to consider herself to have been constructively dismissed.

The Managing Director of the employer company said that the employee was of the opinion that she should work from home, but that their client, a University, would not have allowed this to happen. He outlined that it was the employees’ role to deal with students directly, and she was therefore required to be on campus.

Safety, Health and Welfare at Work

The Safety, Health and Welfare at Work Act 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, 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 in Schedule 3 and provides that ‘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’.

Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’ These principles are engrained in how risks and hazards are addressed, for example the pyramid-structure hierarchy of control often quoted in health and safety documents. The most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls. Personal protective equipment is the last resort and the least effective measure.

Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer. Section 19 requires the employer to prepare a written risk assessment of hazards, including of any unusual risks to a particular employee.

The health and safety duties imposed on employer and employee are an implied term in every contract of employment. Through the contract of employment, employers and employees are bound to comply with the statutory regime and relevant health and safety policies.

Constructive Dismissal and Unfair Dismissal

It is clear from the case law, most notably, Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 and Conway v Ulster Bank UD474/1981, that there are two distinct tests for constructive dismissal. They are known as the ‘contract’ and the ‘reasonableness’ tests. They have in common that the onus falls on the employee to discharge the burden of proof. They are, however, separate tests.

In a claim of constructive dismissal, it falls on the adjudication officer to determine if the employee has met either test. In practice, however, parties may hone their submissions on one or other of the tests (as occurred in McCormack v Dunnes Stores UD1421/2008). While an employee may be able to show that they satisfy both tests, they are not required to meet both tests and there is no fused test, combining both repudiation and reasonableness.

Safe Place of Work

This case does not relate to a general right to work from home or to work remotely. It relates to the circumstances the Covid-19 pandemic. The question is whether the employee was constructively dismissed, either following a repudiation of her contract of employment or if it was reasonable for her to resign. There were wider industrial relations issues (for example working time and pay), but the WRC have only addressed these in so far as necessary to decide this claim of unfair dismissal.

As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles. Compliance with these statutory duties is an implied term of the employee’s contract of employment and significant non-compliance could represent repudiation of that contract or mean that it was reasonable for her to resign.

The WRC decided that the employee was unfairly dismissed by the employer and the employer shall pay to the employee redress of €3,712.50 as compensation for the unfair dismissal.

Conclusion

The WRC found that the requirement that the employee attend the workplace without such adequate consideration of the elimination of risk amounts to repudiation of contract. This arises as providing a safe place of work is a fundamental term of the contract of employment. The WRC held that the employer did not comply with the statutory framework by first seeking to eliminate risk, causing the employee to attend work in greater danger. In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the employee.

Mitigation is not equivalent to elimination.