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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

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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:

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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.

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Health and Safety

Occupational Stress and Actionable Workplace Stress-the Crucial Difference

In the course of my work, on a daily or weekly basis, I meet employees who tell me they are ‘stressed’ or have been signed off work by their doctor due to workplace stress. When I discuss the matter more fully I discover a wide range of reasons as to why the employee feels stress.

She may have made a complaint about a colleague and there is an investigation under way; he may be subjected to a personal improvement plan as a consequence of perceived inadequate performance; she may be subjected to a disciplinary process arising from an allegation of misconduct; he may be feeling the pinch financially and the promised bonus or pay rise has failed to materialise; she may be in danger of failing her probation.

All of these things cause stress.

But are they actionable? Can a legal action be successfully mounted and the employer held in breach of contract or found to be negligent?

Occupational stress v actionable workplace stress

There is an important difference between occupational stress and actionable workplace stress.

The Courts have long held that occupational stress is normal and inevitable.

Work is not play or recreation or entertainment, after all, and it is natural and inevitable that a certain amount of stress will attach to the job. You may work in a shop, you may be a nurse, Garda, pilot, cleaner, solicitor, accountant, work in a factory or warehouse-regardless, your job will always have a certain amount of stress attached.

What is actionable workplace stress? The courts have addressed this question in a number of seminal cases including Berber -v- Dunnes Stores Limited [2009] IESC 10, a Supreme Court decision. In this case the Supreme Court accepted and approved the principles set down in an England and Wales Court of Appeal (Civil Division) Decision of Hatton v Sunderland [2002] 2 All ER 1.

These legal principles are:

1. The ordinary principles of employer’s liability apply.

2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.

5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.

7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.

8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.

9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.”

If you read through these principles you will see, in essence, that the employee must prove at least 4 things:

  1. There was a duty of care to the employee
  2. The harm was reasonably foreseeable
  3. The harm caused an injury to the employee’s health
  4. The harm was a consequence of stress at work

The easy part of this test is proving the employer had a duty of care to the employee for this is self evident.

Conclusion

There is a world of difference between ordinary occupational stress and actionable workplace stress. Occupational stress is a simple fact of working life and will not give rise to a successful legal action; actionable workplace stress is actionable but you must prove you have suffered a recognised mental injury and the employer was legally negligent.

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Health and Safety

Court of Appeal Confirms Employees Have Obligations for Their Own Safety in the Workplace

Many employers believe that if an accident happens to an employee in the workplace the employer will inevitably be found liable and have to pay compensation.

This is not always the case, however.

Two recent decisions of the Court of Appeal give some comfort to employers when it comes to employers liability and health and safety obligations in the workplace.

Court of Appeal Decisions

The first case to look at is Greene v Dunnes Stores.

In this case a checkout operator in Dunnes Stores slipped on a wrapper in her store and injured her arm, shoulder and elbow. Dunnes Stores defended the claim which ended up in the Court of Appeal and Dunnes gave evidence of a security operative walking through the area 5 minutes before the accident and he had not seen any wrapper on the floor.

Dunnes gave evidence that this security person regularly walked through the area and checked the area from the perspective of security and hygiene.

The Court of Appeal held that this was a reasonable approach by the employer and a key defence for an employer is ‘did he act as a reasonable employer?’

The Court of Appeal also noted that the employee had received training and allowed the employer’s appeal from the High Court decision.

Read the full decision here: Greene v Dunnes Stores [2019] IECA 115.

The other case is Kevin Keegan (Amended by the Order of the Court to Kevin Duke) v Dunnes Stores. In this case the Plaintiff suffered an injury when he stepped off a pallet and became entangled in shrink wrapping.

It was accepted that the plaintiff had received training for health and safety in the workplace and had even received refresher training after his original training.

The Court of Appeal affirmed the legal obligation on the employer to provide a safe place and system of work as far as is practicable but also recognised that the employee also has an obligation in respect of his own safety.

The Court of Appeal held ‘the proximate cause of the accident was the failure of the respondent to keep a proper look out and adhere to the instructions he had received in training’ and allowed Dunnes Stores appeal finding that the employee was responsible for the accident and his injury as the shrink wrap would have been obvious to him if he had looked.

Conclusion-not strict liability for employers

No matter how much the employer feels the deck is stacked against him in these types of cases it is clear that the Courts will still require the plaintiff to prove the defendant was negligent and it is not a case of strict liability for the employer.

It is clear,however, that the fact that the employer provided health and safety training for its employees was a big factor in avoiding liability in both of these cases.