During the current pandemic, there is great debate and discussion on the return to work. The main question being asked is what health and safety measures do employers have to have in place for their employees. If the manager or owner of a business is not willing to implement safety measures, then what are your rights in relation to the planned return to work.
It is the legal duty of the employer to provide a safe place to work, this is under the Safety, Health and Welfare at Work Act 2005 which provides that the company or business has to ensure the safety, health and welfare of its workers so far as is reasonably practicable. The employer has an obligation not just to protect against risk but to carry out a risk assessment and to identify any hazards under section 19 of the act.
There is a legal obligation to carry out a risk assessment concerning COVID-19 in the designated workplace with a focus on how the risk will be managed. This information is included in the safety statement pursuant to Section 20 which means that all business and companies have had to amend and update their safety statements.
When the risk is identified, the employer or the company has to provide the protective, preventative measures must be taken and the resources should be provided for protecting the safety, health and welfare of workers at the place of the work. This includes in public spaces and at home.
Working from home has raised new issues. The legal obligations of the employers would appear to be expanding with the policy of some tech companies to provide chairs, desks, tablets and phones to employees at home so that they can attend meetings with ease.
The Health and Safety Authority (HSA) has provided a series of online training and learning that is freely available to all members of the public. The website also provides guidance documents and has a number of regional offices that are willing to support employers and employees. The HSA is aware that the health and safety measures that may need to be implemented will differ depending on the workplace and the activities being carried out.
For employers and manufacturers, the NSAI (National Standards Authority of Ireland) is Ireland’s official standards body, established under the National Standards Authority of Ireland Act (1996). They are accountable to the Minister for Business, Enterprise and Innovation. The NSAI has produced a series of guidance documents outlining what employers should do to protect employees and the public. The employer must ensure that the appropriate measures are put in place.
An employee can make a complaint to the HSA if they feel that their employment is not a safe environment. If an employer refuses to put the required measures in place they leave themselves at risk of losing their insurance and even the potential for an employee to bring personal injury proceedings if their statutory rights are breached. The employer has an obligation to communicate and provide training to an employee on the measures that are being implemented in the workplace. The employee must be trained on new equipment and understand the procedures.
If a person refuses to return to work because the employer has not put reasonable measures in place and they are dismissed from their position, the employee may choose to make a claim of unfair dismissal using the online complaint form to the Workplace Relations Commission.
An employee could also make a claim of constructive dismissal on the basis that the employer refused to provide a safe environment. Although the employee would need to illustrate that they had communicated and engaged with the employer the issues concerned. The employee would need to ensure that they followed the grievance procedures with the employer prior to taking such action.
Lorraine Lally – Law Writer
