ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

EMPLOYMENT LAW BRIEFING:THE IMPACT OF COVID-19

Hosted by CIPD South East Region16th November 2020

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Lay-offs and Short-Time Working;• Redundancies;• Required Revisions of Contracts and Policies;• The annual leave conundrum;• Disability and Imputed Disability in a world with COVID-19;• COVID cranks – employees using the pandemic to provoke

disputes;• Health, Safety and Personal Injury Issues;• Impact on the WRC.

INTRODUCTION

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Is it lawful for employees to attend at work?• Is it safe for employees to attend at work?• Can we afford to have employees working?

• Short-time working• Lay-offs• Right to redundancy due to lay-off• Redundancies – COVID as the reason?

• Working from home

ATTENDING WORK

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

Caritas Convalescent Centre v 64 WorkersLCR22237, CD/20/213 – Labour Court

Section 26(1), Industrial Relations Act, 1990

• The employer – a charity – provided convalescent services to patients;• It was heavily funded by the HSE;• The Centre closed in March 2020 – apparently after 23 of 64 staff

contracted COVID-19;• The company went into liquidation;• Staff were notified of redundancy and told they would receive

statutory payments;• The Court noted that this was a “section 39” agency and

recommended redundancy on public service terms;• The Court also recommended that the company engage with the

shareholder (the Sisters of Charity) and 70% funder (HSE) in an effort to secure funding for the payments.

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Short-time clause• Lay-off clause• Payment

• Pay cuts?

• Safety statement• COVID-19 policy / addendum to Safety Statement• Remote Working Policy• IT & Data Protection policies

• Monitoring working hours

CONTRACTS AND POLICIES

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

HSE, Breffni Care Centre v 10 Multi-Task AttendantsLCR22264, CD/20/105 – Labour Court

Section 26(1), Industrial Relations Act, 1990

• SIPTU sought a retrospective pay award for workers following upgrading;

• The employer argued that significant costs accrued due to COVID-19, the HSE was no longer able to extend retrospection to June 2016 as had been proposed at WRC conciliation;

• The Court appears to have largely ignored the COVID-related argument and recommended (on 6 October 2020) implementation of the WRC proposal with minor amendments.

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

Berendsen (Ireland) Limited t/a Elis v Seven General Operatives

LCR22265, CD/20/32 – Labour CourtSection 26(1), Industrial Relations Act, 1990

• SIPTU lodged a pay claim seeking a 4% increase in 2018;• Workers had received no increases in 12 years;• Concilation at the WRC was not successful;• At hearing on 2 October 2020 the company argued that employees

were on TWSS and COVID-19 was impacting business;• The Court recommended retrospective pay increases, noting that

there had been no reduction in income under relevant contracts and:

“The Court must always be mindful in respect of any pay claim of any factor that may inhibit the ability of an employer to meet the claim. Obviously, the current pandemic has the potential for implications to arise in this regard. However, the economic and commercial effects of the pandemic are not uniform and the Court is obliged to examine the circumstances of each case on its individual merits.”

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• The leave year – 1 April to 31 March or calendar year• Assumption – many people have worked a shorter year….

• Entitlement is the greatest of:

1. 1,365 hours in the leave year = 4 weeks of leave +2. One-third of a working week for each month in which

117+ hours are worked3. 8% of the hours worked in the leave year (4 weeks max.)

THE ANNUAL LEAVE CONUNDRUM

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Employment Equality Act, 1998 (as amended)• Definition of disability• Imputed Disability• Association

• Reasonable accommodation and the COVID-19 “spectrum”:

• Employee having COVID-19• Suspect COVID-19?• Possible COVID-19?• Exposed to COVID-19• Fear of COVID-19• Living with a vulnerable person• Irrational fear• Simply does not want to attend at work / COVID-cranks

DISABILITY

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Fears re personal injuries litigation after return to work;• Return to Work Safely Protocol & HSA• High level of demands• Negligence?

• Moving goalposts – the HSE, schools and teachers• Where now?

HEALTH, SAFETY & PERSONAL INJURIES

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

• Initial shutdown;• Postponements/Adjournments;• New claims;• Backlog;

• Physical hearings;• WRC v Labour Court;• Straightforward cases;• COVID travel arrangements;• Remote hearings –all cases?• Confusion• Plaintiffs turning to the Courts?

THE WRC

ADRIAN TWOMEYJacob and Twomey

Solicitors LLP

www.jandt.ie

REHAB Group v RobertsUDD2026, UD/19/100 – Labour Court

Section 8A, Unfair Dismissals Acts, 1977-2015

• The Complainant was a part-time Training Co-Ordinator/Instructor;• She complained that she was bullied by a colleague;• She resigned and claimed for constructive dismissal after her employer

allegedly failed to investigate her complaint in 2018;• The Court concluded that she had been constructively dismissed;• Thereafter, she set up her own business;• In assessing compensation, the Court noted that the Complainant was

claiming the PUP from March 2020 and was, therefore, unavailable for work from then to the hearing date on 27 August 2020;

• On that basis, she was deemed ineligible for compensation for that period.