When ‘Making Remote Work’, Ireland’s new National Remote Work Strategy, comes into effect later this year, employees will have the right to request remote working.

In the meantime, remote work remains unregulated and employers must use their own discretion in deciding whether or not to implement remote systems of work.

And as a recent decision by the Workplace Relations Commission shows, employers must handle remote work requests very carefully during the COVID-19 crisis.

Consider the employee’s reason for remote work requests

The case concerned a constructive dismissal claim arising from an employer’s refusal to accept a remote working request from a member of staff during the COVID-19 crisis.

The employee worked for an accommodation management business based on a university campus. She and two colleagues raised COVID-19 related health & safety concerns as a formal grievance.

To eliminate health & safety risks they had identified, she proposed a remote working solution. The employer refused the request, saying that the university client wouldn’t agree to it.

Following a period of stress-related sick leave and failure to resolve the issue through the grievance procedure, the employee resigned and subsequently lodged a constructive dismissal claim.

Findings of the Adjudication Officer

The Adjudication Officer (AO) ruled that this case didn’t concern a general right to work remotely. Instead, the case concerned the safety of working practices during the COVID-19 crisis. The question the AO considered was whether the employer had provided a safe place to work. Furthermore, did failure to do so amount to repudiation of the employee’s employment contract.

The AO noted that as an infectious disease, COVID-19 is a biological hazard. This meant the duties of both employer and employee, arising from the Safety, Health and Welfare at Work Act 2005, had to be considered.

Compliance with these statutory duties is an implied term of the complainant’s employment contract. The employer’s refusal to explore the viability of the employee’s remote working proposal amounted to a failure to fulfil the duty to provide a safe place of work.

The AO did accept that the employer had COVID-19 workplace safety measures in place. But these measures were also deemed insufficient on the basis that the remote working proposals would eliminate the risk of transmission, whereas the employer’s proposals only mitigated the risk. The AO stressed that mitigation is not equal to elimination.

Employer failures and outcome

The AO stated that providing a safe place of work is a fundamental term in the contract of employment.

The employer should have first sought to eliminate the risk and by not doing so, placed the employee at risk by requiring her to attend the workplace. The AO concluded that the refusal to consider the proposal repudiated the employment contract. As a result, the employee’s resignation was deemed a constructive dismissal.

The employee’s initial attempt to resolve the issue through the grievance procedure was also noted along with the employer’s lack of engagement with the process. This further strengthened the employee’s claim that it was reasonable for her to resign.

Conclusion

Handling remote work requests is going to become a more common HR task as soon as the new right to request remote work comes into force.

In the meantime, employers need to carefully consider any such requests that are related to health & safety concerns.

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