Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, examine workplace issues that have been brought

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.

Employment Law

Bullying and harassment do not require any physical proximity and the Workplace Relations Commission (WRC) and Labour Court have long highlighted that harassment can take place through telephone calls, emails, text messages and through the use of virtual and social media platforms. Employers should ensure that they have appropriate, up-to-date policies in place to address inappropriate behaviour and that they adequately investigate complaints of bullying and harassment in compliance with the relevant Codes of Practice. Policies should be modernised to explicitly reflect the position that they apply, irrespective of whether employees work at a fixed place or at home or otherwise, and that they extend to interactions outside normal working hours or normal places of work.

Employee wellbeing and management

Many longstanding work-related challenges to employee wellbeing, attendance, productivity and job satisfaction have been brought into sharp focus by the pandemic. Workload, statutory limits on working hours, childcare challenges, illness and medical vulnerabilities are just a few of the challenges which are magnified in current times. These must often be managed very carefully. In relation to working hours, there are limited exceptions to the need to observe weekly maximum working hours as well as minimum breaks. Statutory limits and entitlements continue to apply during this time and working hours must be recorded and proactively monitored. In relation to absences and availability for work, employers have been facing new challenges. In dealing with these issues, the employer must navigate the new temporary wage supports and emergency and other leave entitlements. Some of these are not tailored to deal with the childcare or care-giving challenges that have arisen for staff during the pandemic or indeed to the necessity for staff to take leave from work for health or other reasons. Employer approaches have comprised both availing of the new temporary State supports (where they apply to individual circumstances) but also their longstanding internal policies and processes, such as annual leave, emergency leave and absence management policies. Absence management matters are rarely cut and dried, but there are now additional issues for employers to consider, particularly those regarded as essential services (including essential retail), where most employees will be required to attend the workplace. Employers may experience high levels of absenteeism arising not just from staff illness, but also as a result of having employees who have been advised to cocoon or to restrict their movements or self-isolate. As employers are keenly aware, in managing difficult employee issues and in applying internal procedures, they must bear in mind the unprecedented nature of the pandemic. The everevolving landscape may warrant a relatively strict approach to some aspects of employee conduct e.g. where there is a suspected breach of safety guidelines. In other instances, it may be more appropriate to relax the usual rules e.g. to take account of extenuating circumstances around attendance and absence reporting. Disciplinary issues can and do still arise and employers may have to decide whether to invoke the disciplinary process and, if so, to hold meetings at their premises or remotely or, less likely, to pause the process. Employers will need to consider the practicalities and ensure that such procedures are conducted fairly. Employers will also need to consider the likely impact on an employee’s wellbeing and health of any delays in the progress of any internal procedures. Where staff are struggling, it may be appropriate to refer them to any workplace related supports, such as an Employee Assistance Programme, if one is available. It may also be necessary in certain circumstances to refer the employee to the company’s occupational health advisors or obtain health and safety input where there is significant absence or there are other questions relating to fitness to work.

Lay-off and short-time

Lay-off and short-time have long been used as alternatives to implementing redundancies but never on the scale now necessitated by the pandemic. The provision of wage support schemes such as, currently, the EWSS, has

Employment Law

Employers are required to follow public health advice, which is being regularly revised and updated as the Covid-19 situation unfolds.

encouraged employers to preserve employment relationships. The criteria for availing of wage subsidies can often apply where businesses retain staff with some level of working hours or where they implement temporary lay-offs. The criteria must, of course, be carefully assessed and reviewed on at least a monthly basis. ‘Lay-off’ in this context refers to a temporary period during which an employee does not work and may or may not, depending on the circumstances, receive some level of pay. ‘Short-time’ is where an employee works less than half his normal hours, although many employees’ hours have been reduced to different degrees. Generally speaking, an employer must reasonably believe that the situation will not be permanent in order to implement one of these options and furthermore reasonable prior notice of the change is generally required. However, practices have necessarily adapted very quickly to the circumstances and urgency of the pandemic. Prior notice of lay-offs has been hugely truncated. Lay-offs have been imposed in preference to redundancies in many circumstances where employment contracts may be silent on the issue and there is widespread reliance on ‘custom and practice’ in the sector or on employee consent. It is possible that there will be disputes in this area, for example regarding entitlements to be paid wages at any particular level. There are and there remain potential risks in laying off staff or reducing pay. Employers should also ensure that they apply reasonable and objective selection criteria in selecting employees for lay-off and short-time and do not discriminate against employees on any of the nine grounds protected by Equality legislation: gender, civil status, family status, sexual orientation, religion, age, disability, race, or membership of the Traveller community. This area should be closely watched by employers. A key statutory change in this area is that lay-off and short-time do not currently give rise to the risk that staff can deem their role redundant and as such claim a statutory redundancy payment. This right has been suspended from March 13, 2020, and to at least March 31, 2021.

Takeaway for employers

This is a difficult and uncertain time for employers and employees alike. It is crucial for employers to keep up to date with public health advice and to maintain communication with employees and keep them aware of developments that affect or are likely to affect their employment. Employers should review their policies and procedures to ensure that they are up-to-date and sufficient to cover workplace issues that may now present in ways that were not anticipated at the time of drafting.

ABOUT THE AUTHORS:

FOR specific assistance and advice in respect of any of these or other employment law issues, please contact Barry Reynolds (breynolds@ dacbeachcroft.com) or Jenny Wakely (jwakely@dacbeachcroft.com) of DAC Beachcroft (https://www.

dacbeachcroft.com/en/gb/locations/

dublin/) or one of their other specialist employment law solicitors. This article is for general information purposes only and does not comprise legal or professional advice. You should not rely on any of the material in this article without seeking appropriate legal advice. Twitter: @dacbeachcroft LinkedIn: DAC Beachcroft Dublin

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KEVIN’S MART

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