Employee Wins Constructive Dismissal Case Following Rejection of Remote Working Request
Employers may have been surprised to read in early January of this year that an employee was awarded compensation after being refused the option of working from home during the first Covid-19 lockdown. Much of the talk over the last number of months during the pandemic has been about whether employers could compel employees to attend work. Whilst it appeared that employers did have this right, this recent judgment cast doubt over this, leaving employers in a state of panic in the wake of an on-going lockdowns and further working from home requests. We look at the case of An Operations Coordinator v A Facilities Management Service Provider [ADJ-00028293] ¹ in more detail below.
During the first lockdown back in early 2020 the employee (the “Complainant”) in question made a request to work from home following the worsening of the global Covid-19 pandemic. The Complainant and a number of colleagues had previously raised concerns with their employer (the “Respondent”) regarding the health and safety measures in place to protect them from contracting the virus. However, these issues were never addressed resulting in the Complainant and another colleague taking a leave of absence from work due to stress. On their return to work, the Complainant and her colleague met with their employer who briefed them on the health and safety measures. During this meeting the Complainant requested to work from home and put forward the idea of a rota for her and her colleagues who worked in close proximity of each other in a confined space. The Respondent refused the request stating that it was part of employee’s job to be on site and that adequate safety measures had been put in place to facilitate her presence. The Complainant resigned on the basis her employer had in fact not put in place satisfactory measures at all and referred her complaint to the Workplace Relations Commission (the “WRC”) pursuant to the Unfair Dismissals Act.
Decision of the WRC
The WRC held in this instance that the Complainant was entitled to consider herself dismissed for a number of reasons with specific reference being made to the employer’s obligations under the Safety, Health and Welfare at Work Act 2005. Firstly, the Complainant had proposed the idea of a rota system for her and her colleagues. The WRC noted that this was a “sensible suggestion” by the Complainant as a means of eliminating the risk of spreading the virus, however, it was never explored as an option by the Respondent. Secondly, it was held that Respondent gave no valid reason for not acceding to the Complainant’s proposal given that much of the Complainant’s work could have been done remotely. Thirdly, the WRC noted that the Respondent proposed physical and PPE measures as a means of mitigating risk without firstly considering how to eliminate the risk in the first instance. The WRC made it clear that physical mitigation and PPE are “not alternatives to elimination of risk” but rather a last resort.
The WRC found that the actions of the Respondent (i.e. compelling the Complainant to attend work without satisfactory consideration of the potential risks) amounted to a failure to provide a safe place of work, and that this constituted a repudiation of the contract of employment. It held that the Complainant’s resignation was deemed reasonable given the circumstances. In finding for the Complainant, the WRC directed the Respondent to pay €3,712.50 as compensation for the unfair dismissal.
Much to the relief of many employers, employees do not have an automatic right to work from home. Rather, this case demonstrates that employers ought to adequately consider such a request. While government guidance on this is available, there is no legislative framework for how requests for remote working should be handled. The recently published National Remote Working Strategy, which will involve a new legislative right to request remote working and a new code of practice on employees’ right to disconnect will provide further details on how an employer will have to show a clear and objective reasons for refusing such a request. Although the award to the Complainant in this case was modest (due to the employee finding work after just 5 weeks post resignation), employers could find themselves on the wrong side of much larger awards where they do not deal with similar requests in an appropriate manner.