Ireland: Employee unfairly dismissed for being refused remote working during pandemic

What happened in this case?

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 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 to be stressed and they went on work-related stress leave.

In April, 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, who 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 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:

“Prior 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 then complained to the Workplace Relations Commission (WRC), telling it that the managers at the meeting had been very “pushy”, that she found the meeting intimidating and that she had been threatened with disciplinary procedures. During the WRC 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 the students on campus. The employer went on to explain that significant measures were put in place in response to the virus, including the installation of a barrier for staff and the supply of cleaning materials and PPE, and that no staff member had contracted Covid-19 on the client’s site. The employee was an essential worker and the provision of student accommodation had been identified as an essential service.

What did the Workplace Relations Commission find?

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 is that the employee 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 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 transmission of the virus. 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 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. She therefore had no real option but to resign in the circumstances.

What are the practical lessons for Irish employers?

This decision does not mean there is any general right to work from home during the Covid-19 pandemic, but it demonstrates the standard the WRC 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 if it could work. Employers will be expected to consider remote-working requests thoroughly and 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. While government guidance on this is available, however, 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 Irish government's National Remote Working Strategy, which will involve a new legislative right to request remote working and a new code of practice on an employee’s right to disconnect.

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 their employer’s refusal to allow them to work remotely is discriminatory. The WRC’s determination in the case summarised above may also encourage employees to make claims for constructive dismissal, in circumstances where they feel their request has been unreasonably rejected by the employer and any subsequent grievances have not been handled correctly.

Remote-working requests will become commonplace in workplaces in the coming months, so employers should start considering:

• what roles in their organisations might be suitable for remote working and how this will work operationally
• which roles are not suitable and the reasonable grounds they can put forward for refusing such requests
• how they will deal with remote-working requests and appeals from decisions on them.

This case is also interesting because 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 their employer has not adequately addressed their health and safety concerns, especially as workplaces are now seen as high-risk environments for virus transmission. While this is probably the first of the Covid-19-related employment claims to come through the WRC system, many more are expected.