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Employee Deemed To Be Constructively Dismissed As Employer Did Not Allow Her To Work From Home

In the recent decision of An Operations Coordinator v A Facilities Management Service Provider, ADJ-00028293, Adjudication Officer Kevin Baneham ordered the Respondent to pay compensation to an office-based worker who resigned from her position during the first Covid-19 lockdown after her appeal to work from home was rejected.  

Facts: The Complainant was employed by the Respondent at a university client premises from 14th May 2014 and resigned from her post on 12th May 2020. The Complainant submitted that as a result of the Respondent’s refusal to address the Covid-19 related health and safety concerns about the workplace that had been raised by the Complainant and her two colleagues as a formal grievance she had to take a period of sick leave.

The Complainant had made a request for remote working which she had already done on a few occasions and a number of other proposals to alleviate their concerns as the colleagues working in close proximity to each other which was evidenced in a photo submitted by the Complainant to the WRC. Upon returning from sick leave, the concerns were discussed but no formal grievance meeting took place and the Complainant was not satisfied that enough measures were being put in place. The Respondent maintained the position that the decision regarding the remote working was a decision of the university client whom the Respondent maintained would not allow it.

Decision: In making his decision the Adjudicator found in favour of the Complainant having considered a number of factors. The Complainant and her colleagues had made a number of very reasonable proposals to ensure their safety at work such as rotating of remote working and on-site work to reduce the risk of transmission between them. The Respondent made no effort to engage in a trial of this suggestion and in fact it emerged during cross-examination that the Respondent had not consulted with the client over its decision to refuse this suggestion and the client in fact had no objection to this suggestion. The Respondent’s proposal for PPE-related mitigation measures was held by the Adjudicator not a suitable alternative to the elimination of risk that could have been achieved by the Complainant and her colleagues’ suggestions.

The Adjudicator concluded that the Complainant’s resignation was reasonable as the Complainant had submitted a clear grievance with helpful proposals which were not given any adequate consideration by the Respondent, which left the Complainant with no choice but to resign. The Complaint of constructive dismissal was upheld and the Complainant was awarded €3,712.50. It should be noted that the Complainant received a modest award of compensation as the Complainant had secured alternative employment soon after her resignation.

Takeaway for the Employers: This decision will definitely be extremely interesting to a number of employers who have been receiving and responding to requests for remote working since the beginning of the pandemic in March 2020.

The decision referred to the Safety, Health and Welfare at Work Act 2005 and in particular the duty at Section 8(2)(e) whereby employers must provide systems of work that are “planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practical, safe and without risk to health.” It is important to note that the decision specified that this was distinct to the circumstances of the Covid-19 pandemic and not a general right to work from home. This decision indicated that it may be reasonable for an employee to have resigned from their employment and could represent a repudiation of contract due to the biological hazard of exposure to the virus.

Employers should note that the Government’s commitment to introduce legislation to address requests for remote working and associated employment law issues which will hopefully provide more clarity and structure on remote working requests for employers going forward.

Link  –  https://www.workplacerelations.ie/en/cases/2021/january/adj-00028293.html

Authors – Eva Lindsay and Anne O’Connell

29th January 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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