54|Retail News|February 2021|www.retailnews.ie
Employment Law
Working with a pandemic Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, examine workplace issues that have been brought into sharp focus by the Covid-19 pandemic.
THE Covid-19 pandemic has highlighted many workplace issues and challenges, some that have existed since long before the pandemic and others that are relatively novel. This article briefly discusses a selection of some of the salient issues. Health and safety Since the start of the pandemic, there has been increased focus on employers’ obligations regarding safety, health and welfare at work. These include the requirement to provide a safe place of work, a safe system of work, a duty to ensure that an employee’s colleagues are competent, and that equipment used in the workplace is safe. This is an area that is particularly challenging for employers and employees working in retail. Employers are anxious to ensure that their staff stay safe while carrying out their duties and interacting with colleagues and customers. Employers are required to follow public health advice, which is being regularly revised and updated as the Covid-19 situation unfolds. • As readers will be aware, the May 2020 Return to Work Safely Protocol was updated and replaced in November 2020 by the Work Safely Protocol, which sets out a range of minimum requirements that apply to every sector and place of work. • There is sector specific advice for the retail sector in the form of the Covid-19 Retail Protection and Improvement Guide, published by the National Standards Authority of Ireland (NSAI). • There is also important information for businesses on the Health and Safety Authority (HSA) website, hsa.ie, including helpful templates and checklists. HSA inspectors are now also tasked with visiting workplaces to ensure compliance with the Work Safely Protocol. • The Health Protection Surveillance Centre (HPSC) also has important information for businesses on how to reduce the risks associated with Covid-19.
• There is new guidance on remote and blended working, which of course applies to those managers within retail who are working from home. There have been challenges for ongoing compliance in this rapidly evolving environment. Employers must be in a position to demonstrate that they are doing all that is reasonably practicable to ensure employee safety. Human resources issues can arise in this context. For instance, employers must be aware that various claims could be made by employees, including for penalisation or for constructive dismissal, for example, where an employee alleges adverse treatment following them raising health and safety concerns. Some of these types of claim can give rise to a risk of uncapped compensation or of other remedies in favour of staff. We have also seen a variety of employer responses, including disciplinary action, where members of staff have not been fully compliant with safety requirements, so as, potentially, to compromise the safety of others. These may include, where warranted, disciplinary action and we recommend that specific advice is sought to ensure that the employer approach is within the range of reasonable responses. Bullying and harassment Our article, ‘How to recognise bullying in the workplace’, published in the December 2020/January 2021 edition of Retail News, made reference to an imminent new Code of Practice. This Code has now been published and is in effect: Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (SI No. 674/2020, the “Code”). The Code sets out guidance on identifying, managing and preventing bullying at work and the procedures to be put in place by employers. It is worthy of mention again in this context, given the broad remit of claims of adverse treatment connected to the workplace.
