The criteria for a safe return to work will prove extremely difficult for a large number of employers especially SMEs to put in place. It is essential that employers familiarise themselves with and make sure that they are following the guidelines as much as they possibly can. I don’t think I need to alert people to the potential difficulties for an employer where one employee infects another and the guidelines have not been followed 

One of the difficulties being experienced by a number of employers, in the mid-range scale, is that they now realise that the current workload can be done by far fewer people than they originally required. Also, they have noticed that some employees are self- motivating and some are not. At Marcus Lynch Solicitors, we have had a stream of communications from employers asking what they can do where employees are obviously ‘not’ working from home or putting in productive hours. 

The answer is, of course, that employees are still bound by their Contracts of Employment and are obliged to put in productive hours. A failure to perform your duties is a breach of your Contract of Employment. Employees not performing their duties, are subject to the usual disciplinary procedures and can be put on performance improvement programs, to make sure that they contribute fully to the company. 

The regulations pertaining to layoffs during the period of Covid-19 restrictions, state that you will have a 12 week grace period in which to decide whether to keep your employees on after the restrictions end. After that, they must be paid full redundancy payment. Whether the government will step in to fund this is still a matter of conjecture but my own view is that they will not. The Government's focus will be on getting as many people back to work as quickly as possible. You should note that Revenue have said that if any employee who is on the wages support scheme is later made redundant they will expect the money to be paid back. You should also note that employees on the wages support scheme and on pandemic lay off who are not actually working do not accrue annual leave. You must also start discussing with staff the question of holidays. Remember you have to give your staff a minimum of 30 days notice if you require them to take annual leave. No one wants to take holidays now but equally no employer will want everybody to take holidays when things get busy again. Also the Department have made it clear that they still expect time worked particularly from home recorded. 

Decisions on who to keep and who to let go and the issues outlined above will be undoubtedly be the subject of considerable legal challenge and it is incumbent on employers to have a clear road map on how they are going to reopen, which staff they will keep on and why and to keep normal employment records Employers must ensure that those employees who worked from home are treated in exactly the same manner as those employees who continued to come into the workplace. 

A further issue may arise where employees are reluctant to return to work. It will be essential that employers have procedures in place to ensure a safe working environment for employees. Provided a safe working environment is in place, then the employees must, if requested, return to work. Under the vast majority of contracts the employee’s place of employment is decided by the employer. However if an employee states that they wish to continue working from home because of family or health issues and they are refused a claim under the Employment Equality legislation may follow. 

Where you have self-motivated employees who are clearly performing well at home then every consideration should be given to allowing them to continue to do so. Employers should recognise that in some cases it may be absolutely necessary for them to remain working from home. However both the morale of the individual and of the organisation can suffer if everything is done in isolation. It might therefore be wise to consider whether some attendance at the office may be required. 

In the workplace employers must be vigilant to ensure that the Government regulations are followed. Every employee is entitled to be certain that their workplaces are safe and healthy environments, if it is not, they can report any issues to the Health and Safety Authority and cannot be penalised for so doing. Distancing will be a substantial difficulty. Organisations who practised hot-desking may have difficulties maintaining the required levels of hygiene. 

Any employee who states that they cannot return to work due to health and safety grounds i.e., they are vulnerable or they live with somebody who is vulnerable, will have to be treated with extreme respect. 

Employees health and safety is the absolute priority and any employee who states they cannot return to work due to health and safety considerations, provided those considerations are real, must be allowed to remain at home and can either work from home or be put on layoff until such time as the situation changes. 

There will be major social and economic decisions to be made by employers and employees once the Covid-19 restrictions are eased. Any employer contemplating staff changes, should contact us for advice on how best these changes can be accomplished, whilst maintaining employees statutory rights. Equally any employee who feels that they have been disadvantaged, should contact us to obtain advice about the situation in which they find themselves.