Constructive Dismissal & Covid-19

Issues of workplace safety and requests to work from home are now commonplace within the employment sphere in Ireland.

If an employee has a safety concern about a return to work and an employer requires the person to attend the workplace and this situation is not dealt internally, it can lead to a circumstance where an employee feels forced to resign, who may then bring a claim for unlawful dismissal against the employer.  Such an employee should avail of all grievance procedures at work before making such a decision. Employers have health and safety legal obligations to their employees regarding their safety, health and welfare in the workplace.

Risk of contracting Covid-19 in the workplace poses a risk and each employer has an obligation to identify hazards and assess risks at work, which should be in the form of a risk assessment.

Many employees have someone at home with an underlying condition, and have to consider possible implications of contracting then infecting a loved one with respect to covid-19.

Such an employee will likely make a request to work from home for the current time, which may not be specified for in the persons contract.

If an employee raises a health and safety concern regarding the workplace, the employer should take steps to address this.

The Safety, Health & Welfare Act 2005 states that where 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.

The same Act sets out general principles of prevention to include evaluating unavoidable risks, combatting risks, and adapting work to the individual which includes places of work.

If an employee has safety and health concerns at work not addressed by the employer, who refuses to permit the employee to work from home, who then feels forced to resign, the employee can bring a claim for unfair dismissal under S. 6 of the Unfair Dismissal Acts.

There is a legal duty imposed on employees themselves to take care of their own safety in the workplace and to cooperate with an employer.

If a case officer concludes that an employer did not adequately consider eliminating a risk at work, and nonetheless demanded an employee attend at the workplace, then this employee may well succeed in an unfair dismissal claim as a result.

Disclaimer 

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

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