A recent WRC decision arising from working arrangements during the Covid crisis is very likely to be followed by more WRC decisions on the same topic over the coming months. Employers and employees alike have found themselves in somewhat uncharted territory this past 10 months, as a result of the national measures taken to combat the ever changing health crisis.
This decision concerns remote working arrangements, in relation to which we now of course have the National Remote Work Strategy (“Making Remote Work”), published by the DBEI on 15th January last. Part of this Strategy is the proise of legislation from the Government in Q3 2021, giving employees the right to request remote working, and presumably setting out what criteria employers must consider when dealing with such requests.
The WRC Decision
In An Operations Coordinator v A Facilities Management Service Provider ADJ-00028293, the WRC has upheld a complaint of constructive dismissal in circumstances where an employer failed to facilitate a remote working request from an employee at the outset of the Covid-19 crisis.
The Complainant in this case resigned from employment, and from her post at a university client premises, in May 2020. She had first taken a period of sick leave as a result of what she alleged as a refusal by the Respondent in the case, her employer, to address Covid-19 related health and safety concerns about the workplace that had been raised by the Complainant and two of her colleagues as a formal grievance. This included a request for remote working and a number of proposals to alleviate their concerns. The colleagues worked in close proximity as evidenced by a photo produced by the Complainant at the hearing. On return from sick leave, the concerns were discussed but there was no formal grievance meeting and the Complainant was not satisfied enough measures were being put in place. The Respondent maintained the remote working request was a decision for the university client, whom the Respondent maintained would not allow it.
The decision referred to the Safety, Health and Welfare at Work Act 2005 and in particular the duty at Section 8(2)(e) whereby employers must provide systems of work that are “planned, organized, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health.” The decision also specified that this was particular to the circumstances of the Covid-19 pandemic and not a general right to work from home. As a biological hazard, the WRC found that significant non-compliance with the duty under the 2005 Act could make it reasonable for the Complainant to have resigned, and could represent repudiation of the contract.
The Adjudicator found in favour of the Complainant for the following reasons. There were sensible suggestions proposed by the Complainant and her colleagues as alternatives to working as they normally would – such as rotating of remote work and on-site work to reduce risk of transmission between them. No effort was made to trial this suggestion. There was no objection by the client university to this suggestion, and in fact it emerged in cross-examination that the Respondent had not consulted the client on this decision at all. The Respondent's proposal for PPE-related mitigation measures was not an alternative to the elimination of risk that could have been achieved by the Complainant and her colleagues' suggestions.
The decision held that the requirement to attend the workplace without adequate consideration of the elimination of risk amounted to a failure to provide a safe place of work and, as this is a fundamental term, amounted to repudiation of the contract such as to render the Complainant's resignation a constructive dismissal.
The Complainant's resignation was also considered reasonable as she had articulated a clear grievance with helpful proposals which were not adequately considered, leaving her no choice but to resign.
The complaint was upheld – though the compensation awarded was modest as the Complainant had secured alternative employment soon after her resignation.
Lessons for Employers
The outcome of this decision will be of interest to a large cohort of employers who have been receiving and responding to requests for remote working since the beginning of the pandemic. In light of the duties under the 2005 Act, it will be important to carefully navigate not only the ultimate decision on these requests, but also how the requests are managed, and whether any proposals are adequately considered.
Of course, as outlined above, the Government's commitment to introduce legislation to address requests for remote working and associated employment law issues, will hopefully put more structure on remote working requests for employers going forward.
In the meantime, we have prepared the below Q&A on remote working arrangements which will be of assistance to employers in the on-going Covid crisis;
What are the tax implications for employers and employees in working remotely from another country? Can employees in Ireland ask to return to their native county to continue to work for Irish company?
Firstly, I would caveat my response by saying that specific advice should be sought from a tax specialist, depending on which jurisdiction is in issue. However, the general position is that if employees of an Irish employer are working outside of Ireland, this could also have foreign payroll tax implications for the Irish employer. The foreign country may seek to tax employment income where the employee is carrying out the duties of his/her employment in that country. For countries with which Ireland has a double tax treaty, the treaty will limit the ability of the other country to tax income arising to an Irish resident individual. Typically the treaty provides that the employment income is not taxable if the individual is present in the other country for less than 183 days and is working for an Irish employer which is not operating through a fixed base/permanent establishment in the other country. However, the specific facts and local rules should be examined to assess what foreign tax (and social security) obligations arise in the particular circumstances and whether the other country has relaxed its normal rules in light of Covid-19 travel restrictions.
The employees would also need to consider their personal tax situation if they spend enough time in the foreign country to become tax resident there.
Also, the issue of a “permanent establishment” arises. A permanent establishment (PE) is a taxable presence of an entity resident in another country. Where a company has a PE in another country, the profits attributable to the foreign PE may be taxed in the other country. In broad terms, a PE can be created if an employee concludes contracts in another country and/or if the company is considered to have a “fixed place of business” in the other country. In certain cases, a home office could be a fixed place of business, depending on the specific arrangements and the length of the WFH arrangement. It is therefore very important that employers give consideration to the role occupied by the employee working in a foreign jurisdiction and the working arrangements so as to ensure that allowing an employee to work from a foreign country does not have the effect of unwittingly creating a PE in that country.
Unfortunately, employers will not be able to pass any of the potential tax liability (other than any personal tax liability) risk onto the employee and so that is not a way of mitigating risk here.
Furthermore, there are potential employment law implications when employees are working abroad – along with additional HR complications of managing absence issues etc. in another country. Some companies have taken a zero tolerance approach on any further working from abroad for the above reasons
Working from hubs – will employers need to review their IT policies in conjunction to ensure IT security issues are covered?
Yes, I don't think employers will be required under the legislation to facilitate hub working but where an employer will facilitate it, the employer will need to look at IT security and review existing policies and procedures.
What kind of criteria might the employer need to consider in deciding whether or not to grant remote/flexible working? If employers are not able to accommodate the employees request, will they need to provide the business reasons in writing and what business reasons would be acceptable? If an employee requests to work from home and the employer says no, do they legally have to provide sufficient reasons?
In the UK, there is a right to request flexible working, and if the employer rejects the request it must be for one of the business reasons set out in the legislation, as outlined below. This might give us some indication of what factors might be included in our legislation on remote work, but we will have to wait and see when the legislation is published later this year (Q3 2021);
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to your business
What about the additional cost associated with setting up remote offices in compliance with Health and safety legislation?
We will have to wait and see whether the burden of additional costs will be a factor in our legislation which the employer can use to refuse a request (as set out in the UK legislation above).
What is the legal guidance for employers regarding ergonomic assessments of workstations for employees working from home?
The Health and Safety Authority has excellent guidance on remote working, which can be accessed here.
This guide will enable employers and employees to understand the requirements when working from home and Appendix 1: Homeworking Risk Assessment/Checklist in the Guide is included to help employers and their employees to carry out an assessment of the home working environment as an online fillable form.
Separately, following its public consultation over the summer months, the Department of Business, Enterprise and Innovation (DBEI) has published an online live resource and checklist for employers and employees to manage remote working arrangements - https://enterprise.gov.ie/en/What-We-Do/Workplace-and-Skills/Remote-Working.
Should a remote risk assessment be done for each employee working from home? Over Teams/Zoom, so we can see workspace etc.
Yes, see guidance above from the HSA and DBEI which will assist in this regard.
Is the recommendation that employers undertake virtual ergonomic assessments for remote workers?
Yes, see guidance above from the HSA and DBEI which will assist in this regard.
If an employee cannot work from home, might the legislation oblige employers to provide a workplace such as a hub?
Potentially but I would be surprised if the legislation went that far. The legislation may state that employers should consider whether or not it is feasible for employees to work from a hub, in the overall context of consideration of a request to work remotely, but I cannot see anything beyond that being included.
What are the GDPR/data security implications of working from a remote hub?
Mostly around confidentiality concerns and IT issues with use of WiFi networks etc. Internal policies and procedures, and insurance policies, would need to be reviewed to see if changes were needed. Guidance from the Data Protection Commission is available here.
I am a member of two school Boards of Management. As you know, teachers are now working remotely, and I am wondering if Boards need to update policies to take account of this fact?
Yes, you may need to do so, particularly around remote teaching/learning.
Re. the National Remote Work Strategy and the mandate for 20% of public sector employees for remote working by year end? Where is this sitting right now and how soon might we see this published as presumably the private sector will also look to adapt?
The Tánaiste has confirmed that he will mandate public sector employers, colleges, and other public bodies to move to 20% home and remote working in 2021. The Department of Expenditure and Reform has been tasked with this, according to the National Remote Work Strategy, so we will have to wait and see how this will be rolled out across the public sector.
The following is an extract from DEPR's Business Plan 2021 in that regard;
Remote Working Policy : Develop strategy for Working From Home across the Civil Service: (CSBs to develop their own individual policies based on common core principles) Co-design guidance and toolkit for employers to support remote working in the medium term, and long term post COVID-19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.