Covid-19 crisis means employment law is in 'uncharted waters'

Covid-19 crisis means employment law is in 'uncharted waters'
Brigid O’Donnell of Cantillons Solicitors, Cork said the Covid-19 crisis means businesses are now navigating unprecedented employment law scenarios

Legal practitioners in Ireland said the Covid-19 crisis means employers and workers are now in uncharted waters when it comes to employment law and issues around safe work practices.

While the majority of businesses around the country have been shut down, large numbers of people still remain in employment in essential areas.

However, concerns have been raised by unions and workers around preventative measures to stop workers from contracting Covid-19.

Amongst them are staff in nursing homes who have raised issues about the lack of adequate personal protective equipment (PPE).

Speaking to the Irish Examiner, Brigid O’Donnell of Cantillons Solicitors in Cork said the Covid-19 crisis means businesses are now navigating employment law scenarios with which they have never dealt with previously.

She said issues may arise where an employee declines to attend work on safety grounds.

"Where there is non-performance on the part of the employee, this may be a basis for termination of the employment contract by the employer," she said.

"It is important to note, however, that employers have been urged by the Government to be flexible where possible.

"Where an employee is dismissed for not turning up for work upon request by the employer, the dismissal can likely be successfully challenged where sufficient grounds exist for such a challenge and this issue will be decided on a case by case basis. 

She said inadequate PPE, no social distancing, no handwashing facilities, no hand sanitiser would be examples of a failure to provide a safe workplace.

"The reasonableness of the employee’s actions will be a key issue when it comes to deciding whether a dismissal was fair or unfair.

"For example, if a nurse with an underlying health condition was asked to work without the necessary personal protective equipment, but was dismissed when she refused to do so, this would likely be an unfair dismissal," Ms O’Donnell said.

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