From September 20th, 2021, all workers can return to the workplace on a phased and staggered basis in accordance with the Governments reopening plan. The Government has asked employers to be as flexible as possible during COVID-19. In light of recent changes in the law, employers also need to carefully consider a number of issues.
Some employers are opting to request staff remain working from home and there is a growing trend for a hybrid model of working being seen. New legislation is also expected which will allow employees to apply for flexible working arrangements.
The Code of Practice on the Right to Disconnect is effective since April 1st, 2021 and applies to all employees, including people working from home. It provides guidance on an employee’s right to disengage from work outside normal working hours and requires employers to have suitable policies and practices to ensure compliance.
Employers should also engage with their employees as soon as possible if they have concerns about being asked to attend the workplace. Employers must take reasonable steps to provide a safe place of work for their staff and have further obligations under the Work Safely Protocol. If the employer refuses to meet their obligations, employees can make a complaint to the Health and Safety Authority. If an employer dismisses a member of staff because they refused to return to work on health and safety grounds, and if it can be proven that the workplace was unsafe, the employee could succeed in a complaint for unfair dismissal.
On the other side, Employees may face disciplinary action if they do not return to work where the employer has work available and has taken reasonable steps to ensure that the workplace is safe. Discussions about returning to work with employees may resolve the issues without either party having to take formal action.
An individual’s decision to get a vaccination against COVID-19 is personal and voluntary and should not be demanded by the employer. Employers may provide advice and information on the vaccination programme so employees have the necessary information to make an informed decision.
In most cases, employees do not have to tell employers whether or not they are vaccinated. Guidance from the Data Protection Commission states that, in general, there is no legal basis to collect or process an employee’s vaccination data.
However, this may not apply to employees who work is high-risk settings, such as frontline workers. In this situation, employers can collect data relating to your vaccination status, as a necessary health and safety measure.
In some workplaces, exposure to COVID-19 may be a health risk to workers, for example workers in laboratory settings. In this case, an employer should complete a risk assessment and implement suitable control measures. The employer can offer a vaccination, but employees do not have to accept the offer. If they decide not to accept the offer of a vaccination, the employer must review their risk assessment and decide whether they can carry out their work without vaccination, and what other protective measures are needed. In some cases, the employer may have no option but to redeploy staff to another task or role. The employer should consult with a medical practitioner and the relevant members of staff in such circumstances.
Other issues such as redundancy are also likely to arise over the coming months as the country re-opens fully and government supports are withdrawn. Employers need to be mindful to ensure compliance with fair procedures and the provisions of the Redundancy Acts to avoid unfair dismissal claims in such circumstances.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email firstname.lastname@example.org.