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Covid-19: Employment law expert warns of deluge of back-to-work disputes after shutdown

Solicitor Richard Grogan says that workers and employers will have to be flexible.

Image: Shutterstock/ESB Professional

UNDER THE GOVERNMENT’S ‘Road Map for Reopening Society and Business,’ some workers and employers are due to return to their places of business in less than a week.

But employment law solicitor Richard Grogan has warned that a deluge of workplace disputes could be on its way, which could put pressure on structures like the Workplace Relations Commission.

One major issue he says is that many people will not feel comfortable returning to work in the midst of a pandemic. This, he says, could result in an avalanche of workplace disputes.

“So the employer asks (the employee), ‘ have you got any medical issues?’ The worker says, ‘no, I’m just wary of getting onto a bus.’ So they have no underlying health issue. In that case, the employer is entitled to say ‘I was calling you back to work. You say you will not come back to work. I don’t have to pay you’”.  

The problem here is that the employee would not be entitled to the government’s Covid-19 Pandemic Unemployment Payment and would have to wait up to nine weeks to sign up to regular Jobseekers’ Allowance.

Grogan says that it would be “very stupid” for employers to go down this route straight away. It’s more likely that they will initiate a disciplinary process, which could result in anything from an oral warning up to dismissal.

He says that if the worker does have an underlying condition — as certified by a doctor —  the employer will have to undertake a “health and safety assessment to see if it’s feasible to have that employee back”. 

Essential measures

If the answer is no, Grogan believes that some employers will look to go down the redundancy route.

The majority of employers are going to want to look after their employees. The majority of employees are going to want to facilitate their employer. Where the problem arises is if the employer says, ‘I need to be able to get back working and therefore I need a worker’. 

Grogan explains, “There are provisions under the equality legislation of making reasonable accommodation for a person who has a disability. But not every illness is a disability.”

Furthermore, Grogan says that it might be reasonable for a multinational corporation to “set you up to work from home,” but “what’s reasonable for a two-partner accountancy firm in the Midlands?”

Last weekend, the government announced its return-to-work safety protocol detailing a range of essential measures for businesses to implement before they can reopen.

Among other things, employers will have to ensure strict adherence to social distancing, provide hand sanitiser and create designated isolation areas for workers who fall ill over the course of the working day.

Under the plan, the Health and Safety Authority (HSA) can order businesses to shut down operations if they do not comply with the rules.

But Grogan says that are lingering questions for business owners and employees, which haven’t been answered.

He said that for employers, the protocol is like being given a piece of “flat-pack (furniture) without any instructions on how to erect it”.

One major question that Grogan says employers are asking is how exactly an employee with an underlying illness is supposed to communicate their needs.

Under the government’s return-to-work protocol, workplaces are supposed to designate a “lead worker representative, charged with ensuring that Covid-19 measures are strictly adhered to in their place of work”. 

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Grogan says that some employers are wondering, “Do we need to actually ask the employees do you have any underlying health issues or… is that information passed to the employee representative?”

Formal disputes

All of these issues are going to be sources of tension that he believes could snowball into formal disputes.

Last year, complaints to the WRC increased by nearly 36% to almost 30,000, according to its annual report.

In response to questions asked by People Before Profit TD Bríd Smith about processing delays at the WRC, business minister Heather Humphreys said that the median wait time for a decision in 2019 was 8.2 months. This had worsened from 2018 when nine out of 10 cases went from receipt of a complaint to decisions in just six months.

“(Because of the pandemic) I can see — between industrial relations disputes, redundancy, and by the way, a load of discrimination cases, primarily against women — I can see them in the next 12 months and probably six to seven months hitting somewhere around 60,000 claims,” Grogan says.

So what’s his advice for workers who have concerns about returning to work?

“My advice to workers is the same as my advice to employers. They need to have a chat and it needs to be an open and honest discussion about what can be done to minimise the risk for that employee. There’s going to have to be a lot of flexibility on both sides.” 

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