06 May Right To Work Remotely

With Google recently announcing plans for a fast tracked and earlier return to the office for its employees in the US, having previously being one of the first large tech Companies to go remote last year, many other employers are also now advanced with their planning on how they are going to manage this transition back to the office, and particularly how they will deal with employees who do not want to return. A WRC decision earlier this year may be of interest (Ref ADJ-00028293).

In this case the Complainant worked as a Co-coordinator for a Facilities Management Company and oversaw student accommodation provision on the campus of a third level institution. The employee was deemed to be an essential worker and required to attend her shared office with her two colleagues, but requested remote working due to Covid 19 health and safety concerns, which was turned down by the Company. The employee maintained that the majority of her work was project management and could be done remotely, and proposed that a rota for attendance on site with her colleagues, would minimise contact and therefore would assist with the prevention of Covid 19, but provide the necessary operational daily on site presence. The Company still refused to agree and after a period of six weeks stress related leave, the employee raised a grievance on her return to work which was not upheld, and she resigned and claimed constructive dismissal.

In its determination, the WRC whilst recognising that the employer provided essential services, also noted that there was a specific responsibility on the employer to ensure the health and safety of its employees, as Covid 19 amounted to a biological hazard. The WRC remarked that it was particularly notable, that the employer had not even attempted to trial the rota as suggested by the Complainant and her colleagues. The WRC found that the employers behavior was both unreasonable and amounted to a repudiation of the employee’s contract of employment, and therefore met the standard of proof required in a constructive dismissal claim. However, as the Complainant had found a new job five weeks after resigning, her compensation was limited to her loss in this five week period and she was only awarded €3,712, her actual economic loss.

Whilst this case was determined on its specific facts and cannot in any manner be seen to confer any broader right to work remotely at this point (although there is legislation due in respect of the right to request remote working), it does clearly indicate the need to carefully consider requests from employees to work remotely and especially when there is a health & safety context. It should also be noted that if the claim had been taken for penalisation under Section 27 of the 2005 Safety, Health & Welfare at Work Act, there is no cap on the damages that can be awarded, if successful.