Thursday, March 19, 2020
In our FAQ of 6 March we addressed the key points that employers need to be aware of. Regrettably, the situation is worsening so we have prepared an updated version of our note which takes into account developments since then.
What are my obligations to staff?
Obviously the position has not changed – all Irish employers are obliged to maintain a safe place of work under the provisions of the Safety, Health and Welfare at Work Act 2005.
Employers must take reasonable steps to identify and address risks posed to employees. At this stage, employers should have carried out risk assessments – and in our experience, most employers are now allowing employees to work remotely where feasible.
In terms of an employer’s obligations, all Irish employers are obliged to identify hazards and assess risks in the workplace. In other words, carry out a risk assessment. Employers are also obliged to take necessary ‘protective and preventative measures’. This includes straightforward steps like providing hand sanitizer and wipes, educating staff on the risks posed and reducing international travel for work.
Can I ask staff to work remotely?
As noted in our last update, even if a contract of employment does not actually provide for it, an employer will be generally entitled to ask staff to do this.
Remote working remains a sensible and practical approach in circumstances where the employer believes the workforce is at risk. As referred to in our last update, obviously staff who are working from home have the same entitlement to be paid a salary as they would if they were present in the office.
What is the position in relation to pay?
– As before, where employees are absent on sick leave, an employer is not obliged to pay them unless the employer has a policy of doing so. However, the Department of Employment Affairs and Social Protection have announced that llness Benefit will be available for those who are affected by COVID-19. This has been increased from the normal rate of €203 to €305 per week. To claim llness Benefit, the employee must either be:
a) Told to self-isolate by a Doctor; or
b) Confirmed as having COVID-19 by a Doctor.
– If an employee is not actually sick, but self-isolates as a precaution and not on medical advice, they may not have an entitlement to be paid.
An employer in this situation should firstly consider whether the employee can work remotely. If this is possible, the employer may opt to allow them to do so.
If remote working is not possible, the employer will have to assess whether the employee is fit for work – this will obviously involve engagement with the employee. If the employee is actually unfit for work, they should take sick leave. If they are fit for work but merely self-isolating as a precaution, the employer does not necessarily have to pay them.
– If an employer asks staff to stay at home (and remote working is not an option) the legally safest course is to continue to pay affected staff members.
What about staff who have lost their jobs?
The government has established a payment scheme called COVID-19 Pandemic Unemployment Payment. Anyone who has lost their job as a result of the virus is entitled to a flat payment of €203 per week for up to six weeks.
I have ceased trading but can continue to pay my employees for the moment – what support do I have to do this?
The government is asking employers where possible, to continue to pay workers where they have had to cease trading due to HSE advice on ‘social distancing’. It is asking employers to pay employees at least the minimum jobseeker rate of €203.
By retaining employees in this way, the link between the employer and the employee is not broken and they do not have to submit a jobseekers claim.
Where employers are able to pay employees in this way, they will be able to claim refunds from the Department of Employment Affairs and Social Protection (although it is likely these refunds may take time to process).
Redundancy and Lay-Offs
Irish employment law recognises the concept of lay-offs and redundancies. Lay-offs arise where an employer does not have work for its staff for a period of time but hopes that the situation will improve.
The benefit to an employer is that employees who have been laid-off do not have to be paid for the duration of the lay-off. A lay-off cannot continue indefinitely; after certain periods of time have passed, staff may be able to trigger a redundancy. However, lay-offs can certainly alleviate pressure on an employer’s budget for a period of time.
There are two important points to note. Firstly, a lay-off can only generally be implemented if it is provided for in individual contracts of employment. Secondly, an employer needs to implement a fair selection process (involving consultation with staff and the use of objective selection criteria). Redundancy is permitted in circumstances where an employer is under severe financial pressure and must reduce expenditure, including payroll.
The two most important points to note in relation to redundancy in Ireland are that (a) it is impersonal – roles, not individuals, are made redundant and (b) a fair process must be followed. An employer that fails to observe either of these principles is at risk of an unfair dismissal claim. Choosing poor performers deliberately, for example, is susceptible to challenge – the element of impersonality has to be present.
In addition, if employers are contemplating largescale redundancies, collective redundancy legislation may kick in. This can be an added complication in practice – if employees above a certain threshold are being made redundant, then an employer must enter into a mandatory 30 – day consultation period and must also notify the Minister for Enterprise. Employers who fail to do either of these things can be prosecuted.
What if an employee’s family member is ill/ quarantined?
An employer has a number of options where an employee is needed to care for a family member:-
What are my obligations as an employer where an employee requires time off to take care of their children who are not in school?
Employers are not required to pay employees who cannot work because they have to look after children who are off school. Employers are being asked by the Government, however, to be as flexible as possible in allowing their staff time off to look after their children. This could include:
Can I have employees medically examined to see if they have the virus?
Most contracts of employment allow an employer to do this. In light of the seriousness of the virus, a reasonable request to an employee to undergo an examination would likely be upheld even if the contract does not provide for it.
For further information or advice, please contact Patrick Walshe.