Workplace Relations Commission (WRC)

Lessons to take away from the recent WRC decision on ‘Remote Working’ The WRC, in a recently well publicised case, found in favour of an Operations Administrator claim for Unfair Dismissal in a Facilities Management Company. The employee claimed she was constructively dismissed following a refusal by her employer to put measures in place, in this case working remotely, to address her health and safety concerns in relation to COVID -19. Constructive Dismissal arises where it is considered reasonable for an employee to terminate his/her employment due to the conduct of their employer. The bar is quite high for an employee to win such a case, as the burden of proof is on the employee to prove that they had no choice but to leave, which is why this case is of significance. Can Essential businesses refuse Remote Working? Whilst some employers are of the view because they are considered ‘essential’ workplaces, they can use this as a reason to refuse such requests, this case shows employers cannot adopt such a blanket view on the matter. Currently we are operating under Level 5, which stipulates that people should work from home, unless it is essential for them to be in work. This is in addition to considering any health and safety concerns raised by employees and whether operationally it is possible to accommodate them. Employers have a Duty of Care to employees and must ensure the safety, health and welfare of their employees. This means carrying out risk assessments and identifying, where possible, if a risk can be eliminated, and if not, whether adequate control measures can be put in place to manage the risk. In this case the Adjudicator believed “ the requirement that the complainant attend the workplace without such adequate consideration of the elimination of risk, amounts to repudiation of contract. This arises as providing a safe place of work is a fundamental term of the contract of employment. The respondent did not comply with the statutory framework by first seeking to eliminate risk, causing the complainant to attend work in greater danger. In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the complainant. Mitigation is not equivalent to elimination.” So, does this mean that employers must accommodate Remote Working? No. Firstly this decision has nothing to do with the right to work remotely but all to do with Covid and Health and Safety. Employers are still within their rights to refuse remote working. However, this case demonstrates the importance of being able to show that any such refusal was made following a risk assessment and to be able to demonstrate why objectively, it is not operationally feasible. In addition to the proposals for remote working strategies of the Government, the case further signifies that remote working is going to be with us into the future and if current legislative proposals are introduced then employers will have to justify why they will not allow remote working. Employers should take this time to review the roles within their workplaces, to reasonably assess which roles are suitable to remote working, which roles are not and ensure they can objectively justify such a decision if challenged. We would also recommend that employers prepare now Remote working policies. Case reference https://www.workplacerelations.ie/en/cases/2021/january/adj-00028293.html