Employer Resources Newsletter - May 2021
What Employers Need to Know
As businesses across the country begin to re-open, the Government has issued its latest advice and guidance for employers contained within the Work Safely Protocols, which is updated from the initial version published in November 2020.
The document is aimed at helping employers re-open safely and contains the latest public health information and advice on antigen testing, vaccinations and ventilation along with other guidance on how to prevent the spread of Covid-19 in workplaces and in the wider community. Given some of the detail included in the Protocol, there are some onerous and costly responsibilities on employers as well as an assumed level of trust that employees will comply with the guidance.
Along with the Protocols, there are a couple of practical key tools to help maintain safe workplaces; Communication and Collaboration - employers and employees have a role in preventing the spread of Covid-19.
COVID-19 Response Plan
Employers should continue to keep their COVID-19 Response Plans updated in consultation with employees. Occupational health and safety risk assessments and safety statements should be reviewed and updated. All risks should be addressed, including individual employee risk factors, such as age or medical history.
The Response Plan should also clearly outline measures to deal with suspected COVID-19 cases. And, include contingency plans in the event of increased employee absentee rates due to COVID-19.
At least one Lead Worker Representative (LWR) should be appointed and their role is to work together with the employer to assist in the implementation of and monitor adherence to the measures set out in the Protocol. The identity of the LWR should be clearly communicated within the workplace.
Employers must keep a log to help facilitate contact tracing if required and they must also ensure they maintain up to date contact information for employees. They must also ensure they communicate all necessary public health messaging, including symptoms of COVID-19 and how employees can apply for illness benefit if needed.
Vaccination
Government confirmed that vaccination will remain voluntary and therefore, employers cannot mandate employees get vaccinated. So, it is important employers communicate with employees in terms of the importance of the vaccines while remaining mindful and respectful of an individual’s right not to get vaccinated. And, plan accordingly by offering other working arrangements where appropriate.
Existing advice remains
Advice and guidance around correct hygiene, social distancing and wearing masks all still remains in place. Also, where possible, employees should continue to work remotely.
Before employers begin returning employees to the workplace, there are a number of steps that they must follow. These include establishing and issuing a Pre-Return-to-Work form that must be completed by employees, the provision of induction training for staff, implement temperature testing and implement Covid-19 testing if required.
Antigen Testing
Rapid Antigen Diagnostic Tests (RADT) detect the presence or absence of specific antigens or proteins on the surface of the virus. There was a considerable amount of media coverage recently when one of the supermarkets decided to sell antigen tests to customers.
The aim of RADTs is to aid to identify cases of Covid-19 and if an employer decides to use these tests, they should also ensure all other public safety measures are implemented.
An employer should seek agreement from their employees before implementing any antigen testing programme in the workplace and any decision for a voluntary roll-out should be done through engagement and consultation with employees.
It is important that any information collected as part of a testing programme is in line with GDPR requirements. It should also be pointed out that an employee can refuse to take part in the programme and not be impacted or discriminated against in any way as a result.
Next steps
The full Work Safely Protocols can be downloaded here. It is very important for employers and business owners to familiarise themselves with the protocols and act with caution when managing employees to ensure they are not treated unfairly or discriminated against, while also managing the interests of the business.
At Adare Human Resource Management, we can support your organisation with Training, Risk Assessments, updating your Response Plan and Safety Statements. Our expert team is on hand to answer any questions or provide advice in relation to safely getting your business reopen.
Employee awarded €20,000 after being unfairly dismissed on the grounds of disability (depression)
Adjudicator decides that parties remain anonymous despite recent Supreme Court findings
Background
The Complainant alleges that she was dismissed from her employment on grounds of disability.
Summary of Complainant’s Case
At a meeting in October 2017 to discuss a legal matter, the Respondent said she was considering running for election and asked the Complainant if she would be interested in working for her, which she agreed to do. In November, the Complaint became her Personal Assistant working 5hrs each day, 5 days a week.
The Respondent informed the Complainant that she would pay her for her work once fees came in from a particular case. However, no payment was ever forthcoming and by February 2018, the Complainant told her that she could not continue working without being paid. The Respondent asked the Complainant if she would do some legal work in her legal practice and continue the political duties for her also. She indicated that she would then pay her through the firm.
In March 2018 the Respondent brought an old photograph of the Respondent, the Complainant and the Complainant’s mother dating back to the 2007 election campaign. When she showed the photograph to the Respondent she commented “look at you back then - your hair - how thin you were”. The Complainant explained that she suffers from depression and was on medication for same. Weight gain is a side-effect commonly associated with her medication. She replied “yeah, I was thinking that because when you came into me back in October you looked like shite".
Over the following months there were further issues that damaged the relationship between them. The Complainant was feeling very upset about the way she was being treated and felt she was being blamed for issues that went wrong in the office.
Throughout Christmas 2018, the Complainant was ill, caused by work-related stress. She was unable to sleep and was suffering from migraines. Her GP signed her off from work for four weeks recommenced she take medication which is used in treating anxiety and depression. She again visited her GP in Jan 2019 and was signed off work until end of Feb.
On 28 Jan 2019, the Complainant received a letter sent by registered post from the Respondent. The letter, which was dated 25 January 2019 (the day after the Complainant’s second medical certificate was submitted), stated that after carrying out “a full review of the structures in the office” she found that the position of Legal Executive was “not viable”, without explanation. However, the Respondent went on to state that the Complainant’s employment was to be terminated “by reason of … redundancy”.
Any report of the alleged review has not been furnished to the Complainant. Neither had she been furnished with details of any selection process used to identify why the Complainant was selected for redundancy over other employees.
Enclosed with the dismissal letter was the Complainant’s last payslip, Christmas vouchers and a statement of employment that incorrectly noted the Complainant’s commencement date as 5 March 2018. The Complainant was not informed that she could appeal the decision which had, in any event, come completely out of the blue. At no stage had it been mentioned by the Respondent that there was a possibility of a redundancy or redundancies occurring.
From a number of elements within the workplace it was clear that a genuine redundancy situation did not exist. Rather, it was submitted, the purported redundancy was merely a sham designed to cover a summary and discriminatory dismissal that took place on the day after the Complainant submitted a second medical certificate.
Summary of Respondent’s Case
In or around October 2017 the Complainant assisted the Respondent with some of her political work as a volunteer. Not long after she finished, the Complainant started in a new position in the Respondent’s legal office. That was in March 2018. The Complainant in her complaint form stated that she had commenced her employment on the 9th November 2017. That was incorrect.
The Respondent conceded that she did not give the contract to the Complainant nor had she ever seen a signed version of it.
All of the employees of the Respondent commenced prior to the Complainant and the Complainant’s statement that at least four other employees were hired between her commencement was categorically untrue.
The Respondent first learned that the Complainant was bringing a claim for discrimination on grounds of disability on the 5th March 2019 and categorically denied that the Complainant was dismissed on discriminatory grounds. She was not aware that the Complainant was suffering from depression and at no stage during the currency of her employment did the Complainant put the Respondent on notice of that.
The Respondent was having some financial difficulties and after carrying out a full review, a consultant suggested she should, among other things, reduce the number of staff, by two. The Respondent then began the process of making some positions redundant. She felt the fairest approach to take would be LIFO (last in first out).
The Respondent said she had been having some issues with the Complainant’s performance specifically in relation to a probate account. The Respondent felt that the Complainant had lied to her about the issue.
The Respondent stated that when the Complainant left for the Christmas Holidays, she made it very clear that she would not be returning. She cleaned out her desk and cleaned up her office.
After receiving the complainant’s sick certificate, she became very frightened as she felt that the Complainant was building a case against her. The Complainant had a history of suing people and she felt like she was next in line.
There had been numerous issues in relation to the Complainants’ performance over a period of approximately 4 months. The Respondent went through the financial figures with the Complainant and explained to her that financially she just could not keep on all of the staff. She explained to the Complainant, that the procedure she was using to select redundancy candidates was LIFO.
The Respondent categorically denied that she knew the Complainant was suffering from depression and she denied that she made any comments about the Complainant’s weight or that the complainant told her that her weight gain was a side effect of the antidepressant tablets she was on.
Findings and Conclusions
The Respondent had conceded that she herself did not give the Complainant a written statement of her terms of employment, as required by law. There is a legal requirement for the written terms to be signed.
Due to the ambiguity surrounding what should be a very straightforward matter and taking into account that the Respondent had conceded the point due to the fact that she could not say with any degree of certainty that the Complainant was given it, and because the document relied on was not signed, the Adjudicating Officer found that the complaint was well founded and accordingly she awarded the complainant four weeks renumerations amounting to €2,152.00.
Submissions were not made by either party in relation to why the decision should be anonymised however, based on the fact that the parties work and reside in a relatively small town in the South of the Country together with the Respondent’s profession/s and the sensitive nature of the Complainant’s medical evidence, the Adjudicator anonymised the decision.
The Complainant alleged that her dismissal was discriminatory on the grounds of disability and failure to provide reasonable accommodation.
The Adjudicator stated that she should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious.
Disability
In this jurisdiction disability has been interpreted in an extremely broad way. Depression has been acknowledged as a disability. The Adjudicator was satisfied based on precedent that depression comes within the definition of Disability. She was also satisfied that in the circumstances of this case, that stress came within the definition of a disability due to the fact that the stress was severe enough to exacerbate her pre-existing depression. She was also satisfied that the Complainant was at the material time suffering from a “disability” within the meaning of the Act.
Respondent’s knowledge of the disability
The Adjudicator had to now establish, whether or not, the Respondent was aware that the Complainant was suffering from a disability at the material time. The Adjudicator was satisfied that the Respondent was on notice that the Complainant was suffering from a “stress related illness” upon receipt of the medical certificates. The Adjudicator was satisfied based on the Complainant’s credible evidence and the respondent’s partial recollection of conversations about weight gain /loss that she, the complainant, did have at least two conversations with the Respondent wherein she disclosed that her weight gain was as a result of the anti-depressant medication she was on. The Adjudicator was satisfied that the Complainant has established a prima facia case of discriminatory dismissal on grounds of disability. The burden now shifted to the Respondent to prove the contrary.
Discriminatory Dismissal
The Respondent stated that the Complainant’s health did not enter her mind when making the decision. She needed to cut the staff head count and decided at LIFO was the criteria she would use. However, it was only when she was in receipt of the medical certificates that she took action, and did so in the absence of any process, good, bad or indifferent. The Adjudicator was satisfied that the Complainant’s dismissal was discriminatory.
Reasonable Accommodation
The Respondent stated that the Complainant never sought reasonable accommodation, in order to facilitate her return to work. The reality was that she was given no time to do so, as the Respondent terminated the Complainant’s employment during her period of certified sick leave. The Adjudicator also noted the Complainant was denied her right to appeal the decision.
Decision
Having carefully considered the evidence together with the submissions and the exhibits furnished, the Adjudicator was satisfied that the complaint was well founded.
In assessing the appropriate compensation to reward the Complainant, the Adjudicator took into account the duration of her employment, the circumstances surrounding her termination, the conduct of the Respondent and the effect the dismissal had on the Complainant. In all the circumstances the Adjudicator found that compensation in the amount of €20,000.00 was appropriate.
Our Commentary
This case highlights the importance of having fair, transparent and well-justified procedures in place when choosing employees for redundancy. As stated by the Adjudicator, since the Employer chose to follow the LIFO (Last In First Out) method to select Employees for redundancy, it was unnecessary to also carry out an in-depth analysis of the Complainant’s performance record or an analysis of employee’s skill sets. Furthermore, the Employer made no effort to reasonably accommodate the Employee when she returned from sick leave. It was also understandably suspicious to the Adjudicator that the Employer did not act to reduce its headcount costs until the Employee went on sick leave.
The level of compensation in this case is significant, and reinforces the importance of fair procedure when implementing redundancies, from start to finish, including offering the Employee the right to appeal any decision. It also reminds the readers that depression can be considered a form of disability under the Acts.
It is also interesting to note that even though the WRC can no longer guarantee the anonymity of parties at a hearing, the Adjudicator made the decision to keep the parties anonymised in this case based on the fact that the parties work and reside in a relatively small town in the South of the Country together with the Respondent’s profession/s and the sensitive nature of the Complainant’s medical evidence.
Supreme Court Rejects Challenge to Constitutionality of Workplace Relations Commission
The Supreme Court recently rejected a legal challenge to the constitutionality of the Workplace Relations Commission. The finding stated that the WRC’s power to adjudicate disputes between employers and employees “does not offend the Constitution”.
However, it did raise questions around the constitutionality of some elements of the WRC.
The case came about when lawyers for an employee who claimed he was unfairly dismissed argued that when the WRC made a ruling on a workplace dispute, it was administering justice, a power only given to courts and judges as per Article 34 of the Constitution.
While the Supreme Court agreed, it ruled that the WRC was only exercising limited jurisdiction, allowed under Article 37 of the Constitution. It pointed out that the decisions of the WRC adjudication officers are limited to employment law issues, which can be appealed to The Labour Court and the High Court.
The Supreme Court stated that some of the questions raised over the WRC’s procedures were justified. These included the lack of provision for the administration of oath and evidence provided under oath.
The lack of an express right to cross-examine witnesses was also criticised. The Supreme Court also dismissed suggestions that only legally trained people could carry out the duties of the WRC.
The Supreme Court has returned the constitutional challenge back to the High Court and a hearing and decision will be forthcoming.
What does this mean from a practical point of view?
Given the hearings can now be held publicly, it will not be something that employers would necessarily like given the potential harm to corporate reputations; so, this could play into employees’ hands somewhat.
Swearing an oath in and of itself will not necessarily cause an issue, however if evidence given under oath is intentionally wrong, there may be legal consequences.
It was also reassuring that adjudication officers do not have to be legal professionals as this would cause an issue with the number of officers available, resulting in further backlogs.
Whistleblowing Directive Update – What Employers Need to Know
There has been a number of whistleblowing cases in the nonprofit sector recently that have been generating some unwanted media coverage. Most recently around Covid-19 vaccinations and employees of organisations perceived to be “jumping the queue” ahead of their service users.
Minister for Public Expenditure and Reform, Michael McGrath TD, published the ‘General Scheme of Protected Disclosures (Amendment) Bill’ following approval from Government in May 2021. This Bill is a broad policy outline of proposed legislation, the purpose of which is to provide for incorporating the EU Whistleblowing Directive into Irish law.
The Whistleblowing Directive - European Union Directive on the Protection of Persons Reporting on Breaches of Union law – was enacted back in December 2019 and requires that Member States implement substantial changes to the current protected disclosures /whistleblowing legislation by December 2021.
Changes you need to know about and prepare for
One of the most significant changes to the PDA is the proposal to extend the scope of persons who are protected under the 2014. The proposed legislation would extend the provisions of Whistleblowing protection to private sector employers with 50 plus employees and oblige such employers to establish an internal reporting process, follow up on breach reports and provide protections for whistleblowers; a requirement which is currently only mandatory for public sector employers. A derogation from this requirement will apply to undertakings that employ between 50 and 249 employees until 17 December 2023.
The proposals would extend the definition of a “worker” so that it includes other categories of people. For organisations in the not-for-profit sector these would include volunteers, management, members of the administrative, board members and those involved in recruiting.
Key provisions of the proposed legislation
The proposed legislation will amend the definition of “relevant wrongdoing” (i.e. the categories of wrongdoing that may be disclosed under the legislation). The amendments will:
- protect people who disclose breaches of a range of EU laws that are provided for in the EU Whistleblowing Directive; and
- exclude from the definition of “relevant wrongdoing” any matters concerning interpersonal grievances. A person who raises personal grievances will not have special protection under the Act of 2014 but will still be able to raise grievances through normal internal procedures.
- Recipients of anonymous disclosures will not be obliged to accept and follow up on anonymous disclosures. However, a person who makes an anonymous protected disclosure – and whose identity subsequently becomes known – will still be entitled to the protections of the legislation.
Employers and prescribed persons (who are designated to receive protected disclosures under the Act) will be subject to an obligation to:
- acknowledge receipt of the protected disclosure within 7 days in most instances;
- follow-up on the information contained in the protected disclosure (with certain exceptions);
- provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within 3 months (can be extended to 6 months in duly justified cases); and
- communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.
A Protected Disclosures Office will be established within the Office of the Ombudsman. This Office will:
- receive and redirect, as appropriate, protected disclosures made to prescribed persons under section 7 of the Act of 2014;
- support Ministers who receive protected disclosures under section 8 of the Act of 2014 by carrying out an initial assessment of the disclosure and making recommendations as regards actions for follow-up; and
- in cases where a suitable authority cannot be identified within the prescribed timeframe, follow-up directly on disclosures referred to the Office.
The proposed legislation will increase the range of remedies available to persons who allege that they have been penalised for making a protected disclosure. The facility of a temporary injunction from the Circuit Court before the full hearing of the claim will be extended in all cases of alleged penalisation (currently an injunction is only available in cases of dismissal).
Non-employees who have been penalised will be eligible to be awarded up to €13,000.
As an employer, what should I do?
While the Charities Act 2009 provides for the protection of people who report alleged breaches of the legislation to the Charities Regulatory Authority the EU Directive on Whistleblowing provides additional protections. The precise provisions of the legislation will not be enacted until December 2021, however it would be prudent for employers within the Charity and Not-for-Profit sector to ensure that they carry out a review of their existing whistleblowing policy. As part of the review process it is important for organisations within the sector have appropriate procedures in place to deal with any protected disclosures that are received by them as well capturing the changes that will directly impact their sector, such as the extension of the definition of a worker to now include volunteers, management, members of the administrative and board members.
