It appears that many solicitors have expressed their views on the legal issues that will arise from people returning to the workplace post Covid. The only common ground shared is that “there are legal issues!” The following should not be taken as legal advice, and has no basis more reliable than our own meandering experience (to misquote Baz Luhrmann).
Can an employees pay be cut if they do not return to the workplace?
Almost certainly yes. The following is an extract from a tech company’s contract:
Your place of work will be [Office address]. You may be required to undertake normal business travel associated with this position. In such cases, you will be given reasonable advance notice of travel.
This contract would have been drafted in early 2020, just before the pandemic. If a person does not reasonably agree to work at the stipulated workplace it will be viewed that they are in breach of the contract. While “two wrongs do not make a right” an employer is entitled to ask that an employee work at its place of business, and if they do not disciplinary proceedings will commence.
Obviously the workplace needs to be safe (cf the Safety, Health and Welfare at Work Act), and if it isn’t, a letter from the HSA may issue and an employee may sue the employer if they get the Virus.
An employee can sue an employer if the get the virus?
Yes, it is possible, but hard. An employee may seek to issue proceedings if they caught the virus. Proof of this may be difficult for an employee however. It is possible they may be able to rely on the Health Act 1947, which reverses the burden of proof in some circumstances for infections diseases; of which Covid is one since S.I. No. 53/2020.
Can an employee be let go if they don’t return to the workplace
Almost certainly yes. An employer may choose to take disciplinary action (because they are not where they should be), or may take a slightly more conservative route and make an employee redundant.
If an employee refused to work from home in early 2020 it is likely they would have faced a lay off situation. It might be recalled the Redundancy Acts were amended to allow for an extended period of lay off before an employer would be forced to “call” a redundancy. The converse seems equally correct if people do not return to the workplace. If we get to a point where an employer cannot any longer facilitate working from home, and that everyone is now back in the workplace, a redundancy situation may arise for the home worker:
Redundancy payments Act 1967, s7(2)(b) as amended
“…the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish
In light of the above I think that remote workers who do not want to go back to the office are in an invidious position provided that the workplace is a safe place. Obviously Social distancing and so forth are important, but it is emerging that a vaccinated workforce is becoming the gold standard in this regard. At this point we are seeing that particularly in the US, the “vaccine mandate” is becoming commonplace.
So can you ask an employee if they have a vaccine.
Yes! (really…) On asking an employee whether or not they have a vaccine we know the Data Protection Commissioner has stated:
“as a general position, the DPC considers that, in the absence of clear advice from public health authorities in Ireland that it is necessary for all employers and managers of workplaces to establish vaccination status of employees and workers, the processing of vaccine data is likely to represent unnecessary and excessive data collection for which no clear legal basis exists”
We are of the view the Data Protection Commission is getting a little carried away with itself in this pronouncement. We are further of the view the DPC is utterly misguided and wrong in law, and while businesses are entitled to take note of the views of the DPC, care should be exercises in relying on the views of the Irish Civil Service on the implementation and interpretation of what is European Community law.
The DPC is making the assumption that the GDPR trumps all other considerations and that there could be no legitimate reason for an employer to know the vaccination status of an employee during a pandemic; this is illogical.
Considering the potential health implications (and liability concerns) our view is that an employer is entitled to ask an employee if they have the vaccine. Indeed, the GDPR does not prevent any one asking anything, as no data can be processed if no answer is given; a persons data may be processed once they consent.
While an employee does not have to answer a vaccine related question, the obvious outcome is that an employer will start collating a list of people who do affirm to have the vaccine with obvious implications for those who have not answered or whose vaccine data is “not processed!”. There can be no question, but that employee consent should be obtained to store and process vaccine data, and this should be unequivocal given that it is special category/sensitive data. If one is to say this action is not permissible, then we are adopting the view that one cannot in anyway discriminate against unvaccinated persons, and whole concept of the Vaccine passport/cert goes out the window.
What of compelling employees to have the vaccine before returning to the workplace?
Possibly! We know that employers requiring staff be vaccinated before they return to the workplace is a contentious issue at the moment. Our view is that legislative certainty would be preferable, and without it employers are left to work out the hard answers the Government won’t give.
Our view is that the point will come rapidly where, like the person unwilling to go to the office, the unvaccinated person may find themselves in a redundancy situation, see 7(2)(d):
the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained
Is having a Covid-19 passport a qualification? Is not being vaccinated not “sufficiently qualified”? It would seem such would fall within the impersonality test required of the Redundancy Acts.
Equally the point may come where not having a vaccine may render someone unfit to do their job and the dismissal will be rendered fair by virtue of s6 of the Unfair Dismissals Act
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
( b) the conduct of the employee,
( c) the redundancy of the employee, and
( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Of course by adding in a section (e) making having a Covid passport mandatory would bring a lot of clarity for employers, but in the absence everyone will need to decide what the best solution is for them.
Finally, the above should not be taken as legal advice. Every situation is different and you should always consult with a solicitor where necessary and appropriate.