Reopening of Businesses and The Refusal of Employees to Return to Work

| David O’Riordan

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As businesses prepare to re-open as part of the phased lifting of restrictions by Government, one thing that is clear is that employers and workers will need to adopt a collaborative approach to ensure a safe workplace moving forward. The Government have published a Protocol around the return to work, which is available here.

Long-term commercial viability in the wake of Covid-19 may be a serious concern for some businesses, and a number of issues can present a threat to reopening. These include the mobility of workers, implementation of physical distancing, and a reluctance or refusal by workers to return to the workplace.

Provided that the Government recommended safety measures have been adopted by employers and provided there is no imminent danger of workers contracting Covid-19 by virtue of their presence in the workplace (and/or commute to work), it is reasonable for employers to require employees’ attendance on reopening. Undoubtedly employers will be required to take all reasonable steps to safeguard employees in the workplace.

What Happens if an Employee Refuses to Attend the Workplace?

Irrespective of any written contracts that may or may not cover an individual’s employment, there may be implied terms (unwritten) for every contract of employment (written or unwritten) that a worker will perform their duties. In the event that attendance of employees is required at the workplace in order to do so, then a refusal by the employee may be a disciplinary matter.

If an employee is in a position to perform their duties from home, then the legal position of the employer is slightly more complex. In such situations, a reasonable approach should be adopted by employers pending Government advices on working from home.

Unfair Dismissal

Any employee with 12 months’ service whose employment has been terminated will have the option of bringing a claim before the Workplace Relations Commission for Unfair Dismissal. While the conduct of the employee will be taken into account in determining the overall reasonableness of the dismissal, the test is generally one of fairness and not of law. As such, it is important for employers to take steps to limit their exposure to claims for unfair dismissal. A non-exhaustive list of steps that should be taken is set out below:-

  • Engage with the employee to establish the reasons behind their refusal to return to work.
  • Consider whether any concerns of the employee are merited, and what could be done to address them.
  • Request written notice from the employee that they will not be returning to work as requested.

It is always recommended that employers take advice before terminating an employee to best position themselves to defend any legal action arising from the termination.

Covid-19 Payment

There is a weekly social welfare payment for employees that have lost employment (including temporarily) as a result of Covid-19. This payment is not intended to apply to employees that are simply refusing to return to work. Should employers have cause to suspect that an employee is refusing to attend for work but intends to continue receiving this payment, they should notify Revenue that the relevant employment is now available. Employees should also be put on notice of this prior to Revenue being contacted.

For more information please contact Clodagh Gill, Solicitor

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