Louise Harrison
and Nuala Clayton

In a recent decision, the Workplace Relations Commission (WRC) found that an employee was constructively dismissed when her employer rejected her request to work from home at the onset of the Covid-19 pandemic. While this decision is certainly noteworthy, as the first reported WRC decision concerning Covid-19 in the workplace, it does not represent any departure from existing principles on constructive dismissal.

Of interest is that the Adjudication Officer (AO) found that the employee’s resignation was justified because of a breach of contract, specifically, a breach of the implied duty to ensure a safe place of work. While the pandemic has not altered this statutory duty, it has brought it into practical focus. This decision underscores the importance of meaningful engagement with employees who put forward proposals as to how the duty can be discharged. The poor quality of engagement in this case was a material factor in a finding of constructive dismissal against the employer.

Background

The complainant was employed as an operations coordinator (OC) to provide support to the Accommodation Manager of her employer’s client, a university. Two other OCs shared an office with the complainant on the client’s campus.

The complainant’s work duties were deemed essential for the purposes of the pandemic, and the employer required OCs to attend work on-site as usual. Each of the OCs had immediate family members classified as “high risk” and voiced anxieties about COVID-19 transmission at work. The OCs proposed a rotating arrangement whereby one OC would be on-site at a time, with the other two working from home, to reduce transmission risk. While the nature of the work in question required an on-campus presence, most of the work was carried out on-line. The OCs proposed that only one staff member was required at any given time on-campus, since most students had checked out due to the pandemic.

The Proposal was rejected by the employer. The Managing Director (MD) gave evidence that “it was not an option” to ask the client if the OCs could work from home (WFH). The MD’s contention was that the work could only be carried out on-campus. He said the client had not issued an instruction to WFH. Even though this was the accepted practice at the time, the MD’s evidence was that raising the question of WFH with the client was a “non-starter”. He stated that at the time it was too busy to have just one OC on-campus.

The Proposal put forward by the OCs was never put to the client, who had already directed its own staff to WFH, including staff members who shared office space with the complainant. The client had also provided laptops to its staff and the OCs. These factors were persuasive before the WRC.

Sick Leave and Formal Grievance

The OCs went on work-related stress leave for four weeks in April. A formal grievance was lodged by the complainant. She complained about the rejection of the Proposal and also highlighted that the office shared by the OCs did not allow for social distancing.

The employer’s answer, without discussing the matter with the client, was that the roles were not suitable for remote working. The employer also referred to 27 workplace precautionary measures allegedly in place or underway. The complainant replied that 13 of the measures identified as ‘completed’ were not in place. Upon returning to work after sick leave, the complainant felt that her concerns had not been adequately addressed. She resigned in May, citing stress and anxiety.

Tests for Constructive Dismissal

There are two distinct legal tests for constructive dismissal; the “contract” and the “reasonableness” tests. Both tests place the burden of proof on the employee.

The “contract” test as established in Western Excavating (ECC) Ltd v Sharp provides:

The breach of contract must be repudiatory in nature.

The “reasonableness” test involves an assessment as to whether the employer has “conduct[ed] himself or his affairs so unreasonably that the employee [could not] fairly be expected to put with it any longer.” This test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank).

Decision of the Adjudication Officer

Applying the contract test, the AO found that the complainant was constructively dismissed. His reasoning was that an essential implied term in her contract of employment had been breached - the statutory duty to “ensure so far as is reasonably practicable…the safety health and welfare at work of [the employer’s] employees” (Health & Safety Duty).

The AO found that the Health & Safety Duty had been breached on the basis that:

1. the Proposal suggested by the complainant and her colleagues was “eminently sensible” and it was “striking” that it was not even trialled;
2. the client (who itself had implemented remote working) was not consulted about the complainant’s Proposal;
3. the employer did not provide an adequate explanation as to why it rejected the Proposal; and
4. the PPE/physical risk reduction measures the employer introduced did not go far enough in terms of discharging its Health & Safety Duty.

The employer’s failure to adequately consider the Proposal, against the backdrop of its positive duty to seek to eliminate the risk to employees posed by COVID-19, amounted to a repudiatory breach of contract. For completeness, the AO noted that the reasonableness test for constructive dismissal had also been satisfied.

The award made was nominal, €3,712.50, representing five weeks of pay, the duration for which the complainant was out of work following her resignation.

Commentary

This case turns on its facts and does not have the effect of establishing a right to WFH.

Not every rejection by an employer of a remote working proposal, whether in the context of a pandemic or otherwise, will constitute a constructive dismissal. The decision is hardly surprising in light of the weak business case put forward by the employer in rejecting the complainant’s proposal. It is interesting that the AO’s decision does not address whether the complainant should have proposed lay-off or other measures less dramatic than resignation. Traditional constructive dismissal principles require a decision to resign to be a “last resort” measure. The lack of meaningful engagement by the employer in the case was a weighty factor in favour of the decision against it.

We would observe that a breach of the Health & Safety Duty could feasibly result in a constructive dismissal finding outside a pandemic. Employees’ concerns or grievances about perceived occupational health and safety risks should always be handled carefully and responsively. While not an issue in this particular case, a prudent employer will assess any complaint concerning health and safety for protected disclosure risk, as well as penalisation risk under health and safety legislation.

• Louise Harrison and Nuala Clayton are partners in the employment and benefits team at William Fry.