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.
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:
Health and safety
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.
The Data Protection Commission has issue guidelines regarding working from home.
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.
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.
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
A policy and procedure to identify employees who may have symptoms of Covid-19
The development of workplace changes or policies, including a review of existing sick leave policies
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
The role of the worker and, in particular, those individuals in a customer facing role
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:
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
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,
Employees must have been on the payroll on 29th
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
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
(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.
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.
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
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.
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:
There was a duty of care to the employee
The harm was reasonably foreseeable
The harm caused an injury to the employee’s
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.
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.