Categories
Health and Safety

The bullying dilemma in Irish law

workplace bullying ireland

There is a massive problem for the employee who feels she is being bullied in the workplace. Yes, there are remedies. 

Yes, there are courses of action, including legal, open to any victim.

But it is still a difficult situation. Let me explain.

If you feel you are being bullied in the workplace you would be obliged to try to deal with the issue in the workplace in the first instance. The bullying procedure, if one exists in your staff handbook, will tell you the first step is to confront the bully and tell him that you believe his behaviour towards you is inappropriate.

This is a tough thing to do, let’s be honest.

If that does not work the next step may be to invoke the informal or formal bullying procedure. This will involve the victim making a formal complaint to HR or a line manager about what is going on.

But if the complaint is not upheld the situation may have worsened for the employee who believes he has been bullied. Because now the relationship with the party against whom he made the complaint has probably significantly deteriorated, and the allegation and surrounding investigation may leave a sour taste in the mouths of all concerned.

Why would the alleged victim go through this procedure at all, you might ask?

Because if the victim tries to take the matter further-for example to the Workplace Relations Commision or Court-she will be expected to have utilised and exhausted the internal procedures first. Not doing so could weaken her case later on.

Let’s assume the complaint has not been upheld in the workplace but the employee decides to submit a trade dispute to the Workplace Relations Commission. The employer’s position, if he engages in the procedure, will be that he behaved like a reasonable employer and carried out an investigation in accordance with the procedures in the workplace. 

He will say the complaint was not upheld and he fulfilled his duty of care to all employees, including the alleged bully.

But if a trade dispute has been submitted for investigation by the WRC under the Industrial Relations Act 1969 the employer is not obliged to participate. But it is even worse than that from the perspective of the victim.

Because the employer is given the option to tick a box on the letter he receives from the WRC which prevents any investigation from being carried out. And even if he agrees to an investigation the recommendation from the WRC is legally unenforceable. 

It is only a recommendation. The employer can simply ignore it.

An employee might decide to try to pursue the matter through the civil courts. She could sue the employer for breach of contract, negligence, breach of statutory duty to provide a safe place of work, and so on.

But the employee will have to prove that she was bullied, there was a failure by the employer, and that damage and loss was a consequence of the bullying. This is difficult to prove.

When it comes to loss you might consider suing by way of a personal injury claim for a psychological or psychiatric injury you claim you have suffered. If you can prove this it will be similar to an ordinary personal injury claim and you can be compensated for your general damages (pain and suffering) and special damages (out of pocket expenses/losses).

But this is a difficult case to prove because you will need to prove you have suffered a recognised psychological injury. 

Not just ordinary workplace stress. Not just difficulty in sleeping or a sick feeling in the pit of your stomach at the thought of going to work.

A proper psychological or psychiatric injury which is recognised by the psychiatric profession.

And in the meantime you are either in work, with the associated difficulties with that, or you are out of work on certified sick leave and almost certainly losing out on your usual salary payments. 

A civil action in the courts can be slow and costly and if the case goes to a hearing it is a case of “winner takes all” when it comes to the allocation of the legal costs.

Is it any wonder that many employees who find themselves in this situation eventually just leave the job and move on?

I am not saying that nothing can be done, far from it. But it is a tough situation and can be a lonely road to travel with an uncertain outcome.

Categories
Health and Safety

Illness benefit for Covid 19 absences from the workplace

Did you know that there is an enhanced illness benefit payment available for Covid 19 related absences?

When does it apply?

When a person has been told to self-isolate by a doctor or the HSE, or when they have been diagnosed with the coronavirus.

The illness benefit claim must be submitted online with a certificate of incapacity from work from a GP or the HSE and the rate of payment is €350 as opposed to the normal illness benefit rate of €203.

If you are ill and unable to work but it is not Covid 19 related then you are only entitle to the lower rate.

Also, if you are cocooning on health grounds you are not entitled to the enhanced rate but you may qualify for the normal rate of €203 per week. You will need a certificate of incapacity from work from your GP or the HSE.

You can apply online or by post for these payments.

Categories
Health and Safety

Working from Home-Employment Law Issues to Consider

Working from home as a consequence of the Covid 19 pandemic has led to unanticipated areas of concern from an employment law perspective. The two principal areas giving rise to concern are to do with:

  1. Health and safety
  2. Data privacy/GDPR

The two statutory bodies in Ireland with responsibility for health and safety and data protection-the Health and Safety Authority and the office of the Data Protection Commissioner-have published useful guidance in this area.

Let’s take a look, shall we?

Safety, Health and Welfare at Work Act 2005

Generally, the employer’s duties regarding the employee’s workspace continues in force as set out in the Safety, Health and Welfare at Work Act 2005. These duties include ensuring the safety, health and welfare of employees, the provision of safe systems of work, safe equipment, risk assessments, and information/instruction regarding health and safety.

The employee has duties, also, and must cooperate with the employer, follow instructions and procedures, protect themselves as well as possible and report any injury without delay.

Regarding home working the responsibility for health and safety remains with the employer and he must ensure there is a suitable workspace and equipment and a means of contacting the employer.

Equipment already used in the workplace can be used for home working, provided it is in good condition and suitable. The employer must check with the employee that the workspace is satisfactory and that there is adequate light, heat, ventilation, sufficient space, free of clutter, and so on.

There are further considerations to be taken into account when the employee is a vulnerable worker or has a disability or is pregnant-that is, the employee is in a sensitive risk group and there are further guidelines on the HSA website (see link below).

When employees are using computers and digital technology the employer should consider doing an ergonomic assessment of the workspace. This could involve the use of a questionnaire from the employer to employee in the first instance and then an ergonomic risk assessment depending on the results of the questionnaire.

Employers should also consider regular contact with employees, arranging IT support if necessary, regular communication and feedback and contact details are up to date and there are agreed means of contact. The psychological aspects of working from home and perhaps a sense of isolation cannot be overlooked and the employer should maintain regular contact with the employee.

The employee, too, has responsibilities for her own safety and must cooperate with the employer and keep in regular contact, agree the work to be done, and identify the equipment you need to set up a safe work station at home.

The employee must ensure that she has adequate ventilation, heat, light and maintains a clutter free environment. The equipment the employee will need should be identified including stationery, phone headset, mobile phone, laptop, and so on.

It is most important for the employee to keep in regular contact with the employer as it is in the interests of both employer and employee.

This page on the HSE website is helpful in this regard.

Data privacy and protection

The Data Protection Commission has issue guidelines regarding working from home.

Devices

The safeguarding of devices, effective access controls, keeping the device locked up when not in use, ensuring devices have necessary updates, and fast reporting arrangements if a device is lost or stolen are areas to be looked at.

The usual precaution concerning the use of emails and ensuring you use work related emails for work emails is advised, along with ensuring you follow the employer’s applicable policies concerning email and internet access.

Employees need to be careful about accessing to cloud services and/or the employment network of the workplace, the use of logins being hacked/compromised, and so on.

GDPR relates to all records concerning personal data, including electronic and paper records. Therefore you need to be prudent and cautious about the secure storage and maintenance of paper records, especially records with personal data such as health data.Guidance from the Office of the Data Protection Commission can be found on this page

Categories
Health and Safety

The Return to Work Safely (COVID-19) Protocol-What You Need to Know

The Department of Business, Enterprise and Innovation have published an important document-the Return to Work Safely Protocol-to help employers and employees return to work safely after the Covid-19 lockdown.

The Return to Work Safely Protocol sets out the steps that businesses must take before reopening, and once the workplace is opened for resumption of normal activities.

The Return to Work Safely Protocol is the product of a joint effort of the Health and Safety Authority (HAS), the HSE, and the Department of Business, Enterprise and Innovation.

Read the Return to Work Safely Protocol here.

The specific steps to be taken include

  1. Having a Covid-19 response plan which includes updating safety statements, taking into account individual risk factors such as older workers or those with underlying conditions, contingency measures regarding increased absenteeism
  2. A policy and procedure to identify employees who may have symptoms of Covid-19
  3. The development of workplace changes or policies, including a review of existing sick leave policies
  4. The implementation of prevention and control measures to minimise risk for everyone in the workplace including hand hygiene, respiratory hygiene, and physical distancing, working from home, cleaning of the workplace, use of PPE equipment, where appropriate, and return to work protocols such as the completion of a return to work form
  5. The role of the worker and, in particular, those individuals in a customer facing role
  6. Occupational health and safety measures including reporting obligations if a worker contracts coronavirus, first aid, mental health and welfare, heating, ventilation and air conditioning

The document also sets out where employers and workers can get further advice and information:

Categories
Health and Safety

The Emergency Measures in the Public Interest (COVID-19) Act 2020-Important Employment Law Changes

The Emergency Measures in the Public Interest (COVID-19) Act 2020 came into effect this week. The act contains some remarkable provisions in the public interest to help fight the effects of the coronavirus.

Let’s take a look at at some key aspects of the Emergency Measures in the Public Interest (COVID-19) Act 2020 as the act impacts on employment law in Ireland.

The Temporary Wages Subsidy Scheme

Part 7 of the act provides for this scheme which has been the subject of two sets of guidelines from the Revenue Commissioners. Here is the most recent guidelines on employer eligibility to the wages subsidy scheme.

Key points regarding the guidelines are

  • The employer must self declare that he has been seriously impacted and is a statement that as a result of the coronavirus he will be unable to pay normal wages, wants to retain employees, and will suffer a decline of at least 25% of turnover during the COVID-19 pandemic
  • An employer who has significant cash reserves will be expected to pay a significant proportion of the employee’s wages, even if he has suffered a decline in business
  • The 25% turnover decrease calculation can be carried out on any basis that is reasonable
  • There is some supporting proofs required for Revenue
  • The names and addresses of employers availing of the subsidy will be published
  • There are 2 phases: phase 1 from 15th March 2020 to 20th April 2020 and phase 2 from April 20th, 2020
  • Employees must have been on the payroll on 29th February 2020

There has been criticism of this scheme from various quarters and, no doubt, it is not perfect. But given the circumstances and the need for speed it is inevitable that some infirmities or anomalies would arise. Nonetheless, with goodwill on all sides it is probably worth a fair chance to see the wages subsidy scheme in action.

Redundancy payments changes

Part 8 of the act makes a change to the Redundancy Payments Act 1967 and provides clarity concerning layoffs and short time working during the COVID-19 crisis.

This emergency legislation suspends the employee’s right to a redundancy payment pursuant to section 12 of the Redundancy Payments Act 1967.

Section 12 provides

F31[12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.]

This new legislation inserts a new section 12A which suspends the employee’s right to claim redundancy during the emergency period which is defined as the period from 13th March 2020 to 31st May 2020. This period oculd be extended, however, depending on how the coronavirus is being dealt with.

The critical impact of this provision is to give employers some comfort regarding the fear they had that they would face a large number of claims for redundancy arising from forced layoffs or short time working.

Here is the bill as it was passed by the Dail on Friday 27th March 2020: Emergency Measures in the Public Interest (Covid-19) Bill 2020.

This act also makes emergency provisions regarding the operation of the Residential Tenancies act 2004, time limits relating to planning and development, health and social care professions, the Mental Health Act 2001, the Defence Act 1954, the Civil Registration Act 2004, the Redundancy Payments Act 1967.