Employer ordered to compensate worker after rejecting remote working

An employer has been ordered to pay compensation to an employee who had no option but to resign from her job during the first Covid-19 lockdown after her plea to be allowed work from home was turned down.

The Workplace Relations Commission found in the woman's favour and ordered she be paid €3,712 compensation for her unfair dismissal on May 12th last.

In an email last April to her employer, a university-based facilities management service provider, the operations co-ordinator stated that the refusal to accept her remote-working proposal had increased the risk of Covid-19 for her and to other operations co-ordinators.

She stated: “In the event one of us gets sick I will be putting at risk my husband who is an asthmatic patient.”

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In an email dated April 17th, the worker told her employer she was not able to socially distance from her two colleagues in the workplace.

In correspondence on May 4th, the employer stated: “Prior to Covid-19 there was never a suggestion that the roles could be performed remotely, and the same situation pertains in a post-Covid situation.

“Each person may absent themselves from work and check if they are entitled to a state benefit. The position will be kept under review, but at present the employer’s position is that the three roles are not suitable for remote working.”

The employer stated that it had taken Covid-19 workplace precautions, including PPE; changing the physical layout of the office; the installation of screens; and warning tape and moving desks.

In his ruling, WRC adjudication officer Kevin Baneham found the employee had "no real option but to resign" after her employer failed to take reasonably practicable steps to mitigate risk posed by Covid 19 in the workplace.

He found the employer had failed to implement the proposals made by three office workers that would have eliminated the risk of transmission of Covid-19 in the workplace.

The employer rejected a proposal from the three that two could work remotely at any one time in response to the risk posed by Covid-19.

The woman in the case – represented by Siptu – worked for the facilities management company at a university where there are 3,200 rooms to accommodate students.

‘Repudiation of contract’

Mr Baneham found the requirement by the employer that the operations co-ordinator attend the workplace without adequate consideration of the elimination of risk posed by Covid 19 “amounts to repudiation of contract”.

He stated: “This arises as providing a safe place of work is a fundamental term of the contract of employment.”

Mr Baneham found the employer did not comply with the statutory framework by first seeking to eliminate risk, “causing the worker to attend work in greater danger”.

He stated: “In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the complainant.”

The award made by Mr Baneham would have been higher but for the worker concerned securing alternative employment within five weeks at a higher pay rate.

Mr Baneham stated: “As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles.”