Constructive dismissal in remote work dispute

‘Making Remote Work’, Ireland’s new National Remote Work Strategy, is set to give employees the right to request remote working by the end of 2021.

But, as a recent Workplace Relations Commission (WRC) decision shows, remote work requests are already causing difficulties for business owners.

Reason for care when handling remote work requests

In this particular case, the WRC ruled against the employer in a constructive dismissal claim. This claim arose from a refusal to accept a remote work request from the employee during the COVID-19 crisis.

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

In order to eliminate the health & safety risks she and her colleagues identified, she proposed a remote working solution. The employer refused the request on the basis that the university client would never agree to it.

Findings of the Adjudication Officer

The Adjudication Officer (AO) ruled that this case didn’t concern a general right to work remotely. Instead, the unique facts of the case concerned the safety of working practices during the COVID-19 pandemic. The key question to be determined was whether the employer’s failure to provide a safe place of work amounted to repudiation of the employee’s contract of employment.

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

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

The AO acknowledged the employer’s proposed workplace safety mitigation measures. These measures were, however, 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 equivalent to elimination.

Ruling and compensation

The AO stated that providing a safe place of work is a fundamental term of the contract of employment. The employer failed to comply with the statutory framework by first seeking to eliminate the risk. This in turn caused the employee to put herself at risk by attending work. The AO concluded that refusal to consider the remote working proposal repudiated the employment contract and the employee’s resignation was deemed a constructive dismissal.

The employee’s first attempt to resolve the issue through the grievance procedure was also noted. The employer never fully engaged with the process, however. The AO determined that the employer’s lack of engagement with the grievance process strengthened the employee’s claim that it was reasonable for her to resign.

The AO found in favour of the employee and awarded €3,712.50 in compensation. The amount was relatively low as the employee was only out of work for five weeks following her resignation.

Conclusion

Remote work requests are going to come across a lot of HR desks this year.

The National Remote Work Strategy includes proposed legislation that should provide more clarity around the rights and duties of employers when dealing with such requests.

Need our help?

For further advice on handling remote work requests, speak to an expert now on 01 886 0350 or request a callback here.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Latest Resources

Probationary periods and employment contracts affected by new rules

As January is a quiet time for many business owners, it can be a good time to do some HR jobs that have been put […]

Handling employee resignation and notice periods in Ireland

Employee resigning with documents and belongings
How to handle employee resignation and notice periods in Ireland From time to time, an employee resigns to pursue a career outside of your organisation. […]

Employer’s guide to the Organisation of Working Time Act

Employer’s guide to the Organisation of Working Time Act The Organisation of Working Time Act 1997. What does this legislation set out to do and […]

Nora Cashe

Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

Graphite HRM

Rhiannon Coyne is a Senior HR Consultant at Graphite HRM and will be providing an overview of best practice on how to deal with complaints of bullying and harassment in the workplace. 

With a number of recent updates to employment laws, Rhiannon will take a closer look at employment equality and how it is interlinked to Health & Safety and what employers can learn from recent case laws.

David Begg

Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.