COVID-19: Returning to the Workplace - Employment Law and HR ConsiderationsPosted in : Webinar Recordings on 14 May 2020
Jennifer Cashman, Partner, Ronan Daly Jermyn, shares practical insights on what issues you need to consider now in advance of a return to the workplace, in part 1.
In part 2, Jennifer recorded a follow-up Q&A session which answers the questions we didn't have time to address in the first session.
You can explore the contents of this article with ease using the contents table below.
Legal Island has created an eLearning course in partnership with Ronan Daly Jermyn (RDJ) that complies with HSA guidance and enables employers to provide compulsory COVID-19 induction training to all employees in advance of them returning safely to the workplace.
CONTENTS (Part 2 - Q&A Follow-up)
Following this webinar with Jennifer Cashman on the Safety Protocol for Returning to the Workplace, the HSA has published a number of templates and checklists to help employers, business owners and managers to get their business up and running again and to inform workers about what they need to do to help prevent the spread of Covid-19 in the workplace. They have been drafted based on the Government’s Return to Work Safely Protocol and should be read in conjunction with the Return to Work Safety Protocol. Employers and workers must work together to keep workplaces safe. These checklists will help you to do that.
The templates and checklists are available here:
Jennifer: So, I suppose moving on starting maybe with the sort of basics. I suppose all employers have responsibilities under the safety, health and welfare at work legislation, and to ensure so far as it's reasonably practicable and they're very important where it's the safety, health and welfare and at work of his or her employees. And I suppose it's just important to remember that, you know, those obligations remain, and they are unchanged in terms of they haven't been diluted in any way, in fact, they've been I suppose enhanced in terms of employers' responsibilities under the protocol documents which we'll talk about in a minute.
And important to remember, you know, in a worst-case scenario, you know, companies can be looking at fairly hefty fines for breach of health and safety legislation, and there's also potential for criminal prosecutions. It's also very important to remember that directors, managers, or officers of companies can be themselves separately prosecuted under the health and safety legislation. So I suppose, we can't underestimate and understate the importance of employers health and safety obligations generally, but no more so than in the current circumstances in which we find ourselves with the public health crisis that is COVID-19.
And I suppose in terms of health and safety, it's important to remember that's where possible of course it's about eliminating risks in the workplace but it's not always possible to eliminate risks and sometimes all we can do is minimise those risks. And we do that by a variety of measures. We do it by looking at devising risk assessments and safety statements. And we look at it by actually when we have those risk assessments and safety statements in place, we look at actually taking the measures that are outlined in terms of eliminating or minimising risks. And we must look at training of our staff and our employees and our managers and everybody in our company in terms of what measures are in place and how to comply with those measures.
And then, of course, as I said to enhance our health and safety obligations as employers, we must now comply with the national protocol that has been devised, which we'll talk about in a moment, and also any other public health guidance, and that's will come in respect of dealing with the COVID-19 crisis. I mean, you've all seen the guidance changes at quite regularly and is enhanced quite regularly. So it's very important for employers to stay up-to-date and keep in line with that guidance.
So moving on in terms of health and safety as I say I suppose the starting point for any health and safety scenario is a risk assessment. And every employer and company will already have carried out risk assessments in their workplace, but now it's time to update those risk assessments and safety statements. And the protocol clearly sets out that although the protocol has not been put on a form as statutory basis. And the Health and Safety Authority inspectors do have extensive statutory powers to enforce appropriate standards, safety, health, and welfare at work including the standards that are set out in the protocol.
So although the protocol document itself hasn't been published on the form as statutory basis, it seems to us, to be honest, that may come. And there is as you may be aware currently a public consultation to the Labour Economic Forum, and in relation to the protocol that has been published and they're looking for feedback from employers and companies in respect of the contents of the protocol. So it's likely it's been described as a living document, it's likely that it will change and be enhanced over the coming weeks and months, and very possible that at some point it will be put on a statutory footing by way of maybe a set of regulations under the safety, health, and welfare at work legislation.
But as things currently stand, it is still enforceable by the Health and Safety Authority. The minister has indicated it's a mandatory document from an employer's perspective and employers must comply with it. And that the Health and Safety Authority will have powers of inspection and enforcement of workplaces in respect of the obligations set out in the protocol, and also the obligations that stand alongside that from a public health perspective.
So it is important to remember that and I suppose also very important to remember that leaving aside the risks under the safety, health, and welfare at work legislation a failure to put in place at the standards that have been set out in the protocol and the failure to comply with your obligations generally from a health and safety perspective as an employer can in any event result in a variety of legal claims under employment legislation by employees against the employer for failing to protect the employees in the workplace. So really the importance of the health and safety measures can't be understated in respect of the reopening of workplaces and the response with COVID-19.
And just moving on this was something else that's very important to remember and it's not surprisingly mentioned in the protocol, but again, given that it's a living document, it may be mentioned in due course is that employers can't forget that they also have obligations from a data protection perspective and from a GDPR perspective.
The Data Protection Commission has indicated that measures taken in response to COVID-19 involving personal data to include health data must be necessary and proportionate and that any measures taken by employers should be informed by guidance and directions of the public health authorities or other relevant authorities. So I suppose it's important as we are expecting more guidance to be issued by the Data Protection Commission as things evolve over the coming weeks and months, so really very important again to keep an eye on guidance coming from that direction.
And because as I say it's not mentioned in the protocol, but that doesn't mean, of course, that those obligations don't stand alongside your obligations under the protocol and are very important obligations. And just as employees can make complaints to the Health and Safety Authority in respect of health and safety obligations not being complied with, equally they can make complaints to the Data Protection Commission about employers not complying with their obligations under data protection legislation and GDPR.
So your privacy statements and your other data protection policies and procedures already in place in the workplace shouldn't be forgotten of those when you're looking at your documentation and in relation to your response to COVID-19 and preparation for your reopening.
So in terms of mitigating risk, it's about looking at risk assessments, safety statements, complying with protocol and other guidance to include our data protection and GDPR obligations. And really, I would have to say from my own personal view on this is that the importance of health and safety professionals in all of this cannot be understated. And I really believe that in order to assist employers and to mitigate risks for employers has been safety experts should be liaised in respect of your preparation for returning to work.
Many of you who are from bigger organisations will of course have already have environmental health and safety teams in place in the workplaces at which are well placed to deal with these issues and to go through the protocol and put in place all of the measures that are set out in the protocol. But other workplaces who don't have designated health and safety specialists, should really look us invoking the help of external health and safety experts to get them ready and help them. Because I really think that will help from, first of all, from the perspective of preparing properly for reopening, but also from a legal perspective would be very helpful in terms of mitigating your risk to say that, you know, you engaged the services of an expert health and safety individual to help you with your risk assessment and your safety statements, and eliminating and minimising any risks associated with COVID-19 in the workplace.
Equally your occupational medical experts shouldn't be forgotten in all of this. Again, some of you from large organisations will have occupational health teams on site, others of you will have occupational health experts that you liaise with for the purposes of dealing with employees who are on sick leave and other issues for pre-employment medicals or whatever. And again, those experts should not be forgotten in all of this, and you should be liaising with them and taking their advice and guidance in respect of what measures should be implemented and was assistance they can provide to you when you're making your plans to reopen your workplace. So please, include your health and safety experts and your occupational experts in your plans. Because I do think that their help will be key really here to mitigating your legal risks in all of this.
So moving on then, we're all as I say looking forward to some degree of normalcy and coming back. I mean, working from home is wonderful, but not in the current circumstances. We're all doing this under forced circumstances where we have no child's care and everybody's working in difficult circumstances from that perspective. So you're looking at your advance planning, you're looking at starting to make your plans for reopening.
And where do you start? Well, obviously you start with the roadmap for reopening society and business which was published by the government a number of weeks ago. And that has been all set out a five-stage plan return to work. Now obviously that is also a living document that is liable to be changed depending on public health advice and depending on the advice the government receives from an assess as things develop on over the coming weeks and months.
But as things currently stand, we do have a roadmap and we do have dates for the five different phases for the reopening of our society and economy. So some of you will already be planning or have your plans in place for your reopening next week on the basis that you fit into Phase 1 of the roadmap. So that's retail outlets primarily, outdoor garden centres, hardware stores, farmers' markets. I think we'd all be very happy to see all of those coming back next week. And then obviously other repair shops, office products, electrical, IT, phone sales, and hardware shops.
So many of you who are already sort of imminently planning your reopening next week and have many of the steps already taken in respect and we all have heard interviews with various organisations like Chadwicks have indicated they've already spent €200,000 on their health and safety plans to reopen their workplace.
So the first, your starting point is the roadmap, and you look at the roadmap and you determine what phase of the roadmap you should fit into. NPHET (The National Public Health Emergency Team’s Public Health Framework) have indicated they're not going to give specific advice for specific employers in respect of which phase of the roadmap that they fit into, that's a matter for individual employers to determine. I suppose it's important to remember that the common bullet points throughout all of the phases in the roadmap is that those who can undertake remote working and should continue to do so. And that is the advice set out in the roadmap right up to Phase 5.
So many organisations like our own that have employees remote working and have been able to facilitate that, the roadmap essentially tells us that that should continue until Phase 5. But for other retail organisations and other organisations, you will be in earlier phases of the roadmap. That's your first port of call. Once you've determined where you fit into in your plan phase at phase opening, your next document to look at is going to be the Return to Work Safely Protocol, which I have already mentioned, which is our mandatory protocol which set out the steps that all employers have to take in conjunction with their employees in order to make sure that their workplace is safe for employees to return to.
And there are then specific guidance in many sectors like the sailing, Irish Sailing Association for example has very good guidance on its own website. There are many different sectors specific guidance that you should look at in respect of your own sector and your own bodies as to whether or not there are any assistance and documents provided in respect of your own sectors. The NSAI has the Workplace Protection and Improvement Guide that predated the protocol. So that guide predated the publication of the protocol. But there are very similar themes in respect of both.
That's a really good document to look at. It's a little bit more detailed, in fact, than the protocol itself. So I would urge you to look up at the NSAI guidance document. I'm giving you the link for it there. And there's a specific NSAI guidance document in respect of retail. So again, I wouldn't ignore that document in terms of the guidance set out there. So that's sort of a really good starting point in terms of your documentation and where you start.
And moving on then as I've already said and who needs to be involved. And I suppose my handshake pictured there probably is the wrong one to have given that we have a mandatory no handshake policy set out in the protocol. But as I've already mentioned, you need very close collaboration with your health and safety advisers be they internal or external or possibly both, and your occupational health teams and consultants. And you need to talk to your insurers, and you need to look at what insurance policies you already have in place. You all have employer's liability insurance policies in place. You really do need to open up a conversation with your insurers in respect to what insurance is already in place. Are there any provisions in your insurance policies that you need to take into account now in planning your reopening, so again, don't forget about that. Don't forget about the insurance and don't forget about the insurance angle when you're looking at your reopening.
And talk to your staff, so very important, and the protocol document, you know, very much is talks about dealing collaboratively with your staff and everything being in consultation with your staff. It's really important that you keep the lines of communication open with staff and never more so than when you're talking about reopening. You need to know what the views are of your staff in terms of reopening and what their own personal circumstances are and, you know, how difficult it may be for them to return to work. I mean, one of the glaring omissions in the protocol is the whole childcare conversation. And under the roadmap for reopening and childcare in Phase 3 which is the end of June, we have the opening of crèches, childminders, and preschools, but only for children of essential workers and only then in a phased manner with social distancing and other requirements applying.
And then only in Phase 4 at the end of July, 20th of July, do you have the opening of crèches, childminders, and preschools for children of all other workers. And again, that's on a gradually increasing phased basis one day per week and slowly increasing thereafter. So, you know, that is an unsaid point in the protocol document, but at the end of the day, your staff can't come back to the workplace if they don't have childcare arrangements in place to look after the children that are now at home with them while they're trying to do their work. So you really need to keep the lines of communication open there in terms of what is the reality of people being able to return to the workplace even if they really want to, they may not be able to do so.
So again, all of that consultation and communication with your staff and taking into account the elements of the roadmap. And you've seen last night that they have had to cancel the childcare arrangements that were being put in place, the childcare scheme that has been put in place for health care workers for next week, because they didn't have enough health care providers signing up to that scheme.
So that is a real issue for employees and the employers, that it has a big impact from an employer perspective as well, and you don't want to create tensions to the workplace between people who can return and those who can't, because they have childcare and those then who feel under some pressure because they have to stay at home but they feel that they should be back in the workplace. All of that can be to huge employee engagement and grievance issues so you can't ignore those issues and those practical difficulties that are caused by this phased reopening of society.
So moving on then to the protocol, so last Saturday the government, the HSE Department of Health published the protocol for returning to work safety. As I said, this is a mandatory document designed to protect the health and safety of workers as they return to work. It's been developed following discussions at the Labour Employer Economic Forum that means that you will have had an employer and employee bodies involved in publication of the protocol.
It's very important that to remember that, firstly, of course, it's mandatory but secondly, that it is a living document. It is likely to change, and there are likely to be different iterations of this document as the weeks and months go on as I've already said. And we may very well end up with the set of regulations in due course from a health and safety perspective. But the Health and Safety Authority is the lead agency in terms of overseeing compliance of the protocol. So again, that leads me to back to the fact that you cannot ignore that you must have conversations with health and safety specialists in relation to this, because they really are going to be very important.
They are the people who are used to dealing with health and safety issues, they're used to liaison with the Health and Safety Authority, so they are really very important in terms of your plans for returning to work. And as I've said, just in terms of the fact that it's a living document, just need to keep up-to-date and keep in tune with the guidance that's issued and through Legal Island will help you and we'll help to keep up-to-date in that regard as well.
So, moving on, what needs to happen? Well, first of all, as I said, current health and safety plans need to be updated. So where do you start? You start with your risk assessments, and you start with your workplace from a COVID-19 perspective. What are the risks in my workplace of the transmission of COVID-19? How do I eliminate any risks that I can eliminate, or how can we minimise those risks if we can't eliminate them? So you start with your risk assessments that will in due course feed into the amendment of your safety statement, your overarching safety statements. And that will lead on then in turn to the COVID-19 response plan that is outlined in the protocol that all employers must have. But the only way that you can have your response plan which is the measures you are taking to respond to the COVID-19 risk is when you have your risk assessment and your safety statement in line. So talk to your health and safety experts in relation to your risk assessment and your safety statements. And then after that you'll be putting in place your COVID-19 response plan.
You must have a return to work induction for all staff, and that must happen before they come back to work. And a lot of employers that I'm talking to are looking at doing that remotely, they're looking at facilitating that training remotely. Some employers are bringing employees on site to do that training. And again, that will mean that you will have to have your questionnaires sent out to people in advance to bringing them back on site. And you'll have to make sure that you have all of your social distancing and all of your other measures in place in your workplace before you bring people back in for that induction training even if that is in advance of the workplace reopening on a formal basis. Because once you bring people back onto your workplace for whatever reason, then you are obliged obviously to look after their health and safety.
And there is a return to work questionnaire, a self-declaration that's set out clearly in the protocol, which I'll talk about in the minute, which must be issued to staff three days before they return to the workplace. It should also be issued to contractors so if you have contractors on your site that will be coming back on site, that questionnaire should also be issued to your contractors. It should also be issued to any visitors that you're going to have on site and obviously from a COVID-19 risk minimisation perspective you would also be minimising visitors on the site. But where you do have to have visitors on site, and you will be issuing your questionnaire self-declaration to those individuals as well. And the Data Protection Commission has specifically made reference to those questionnaires and said that they would be considered, you know, legitimate and proportionate in the circumstances where they are in line with public health guidance.
And obviously employees with any symptoms of exposure should not come to work. So the important thing to remember here is it's not just employers that have obligations under health and safety. In the protocol employees too have obligations, and this is very clearly set out in the protocol and it's very helpful that employees are reminded that they too have obligations to take care of their own health and safety and also the health and safety of their colleagues and co-workers. So any employees with symptoms or who are at risk of spreading COVID-19 should not be attending the workplace.
And again, that should be drawn into your COVID-19 response plan and then any policies and procedures that we will be putting in place over the coming weeks and months. We need to have an emergency response procedure in place as provided for in the protocol. There should be an isolation area, specific isolation area where we can bring employees that are suspected cases of COVID-19 so that we can keep them in isolation for period of time before we organise for their leaving the workplace.
And an isolation area could be a meeting room for example, an office-based employer won't be using their meeting rooms, because they won't be having face-to-face meetings in the workplace. So meeting rooms could be designated as the isolation area or some other area in the workplace but you must designate an isolation area in the workplace under the protocol. And that's very clearly laid out in the protocol. And then obviously the protocol goes to very clearly hygiene practices, all of that hygiene practices that we've all become very used to in terms of hand washing, cough etiquette, working from home, and managing the workplace travel visitors, and all of those measures.
Employers must appoint at least one lead worker representative and now the protocol goes on to say that the number of lead worker representatives should be proportionate to the number of employees in the organisation, and it doesn't give any more specific guidance on that in terms of, you know, whether it's one per 100 or one per 10. It doesn't tell us fast. But effectively it will be a matter for employers to determine the appropriate number of lead worker representatives. And I suppose it's important to remember that lead worker representatives are just that, they are worker representatives. So they should be representative of the employee body, so they're not from management.
I mean, they can of course be representative from management on any COVID-19 workplace team but lead worker representatives should be representative of the employee body and the whole purpose of that is for that this whole idea of collaboration and communication between the employee group and the employer. And, you know, employees can feed in their suggestions and their concerns to the employer. So your lead worker representatives must be appointed. The protocol doesn't tell us how they're appointed. And most employers that I'm talking to are going to seek volunteers remotely obviously. While people are working remotely, they're going to seek volunteers for that lead worker representative role.
That lead worker representative's role then in and of itself requires training. So those individuals will need to be trained in respect of their role, and how they can assist in helping to minimise our risks and comply with our obligations under the protocol. I mean, if any organisations, you know, that are starting to think about reopening, they really do need to have their lead work representatives in place or at least go out now and look for volunteer if that's how you're going to do it in terms of those lead worker representatives.
Some employers who are unionised will already have measures in place on collective agreements in terms of appointing representatives in that way. So, I mean, maybe existing collective agreements might be of assistance in that regard as well. And I imagine very few collective agreements will have anything specific to pandemics. I don't think any of our policies and procedures ever envisioned a situation in which we now find ourselves. So from that perspective it's unlikely that you have anything specific to this type of situation which you may have something about the appointment of worker representatives in different situations which might help in terms of the obligation in the protocol to appoint lead worker representatives.
So as I say, it's someone who can represents the employees and most employers are going to look for volunteers, because they'll want that person to want to be in that role. And again, those individuals must be trained.
Moving on, the protocol sets out specific questions that are to be asked in the screening questionnaire. This is the questionnaire that must be sent out to employees at least three days before they return to the workplace. So they should have already been sent out to those employees who are returning to work next week under Phase 1 of the roadmap.
They are yes/no questions. I would not deviate from these questions for now. These are the questions that are set out in the protocol. So from a data protection perspective, these are the appropriate questions to be asked from a public health perspective. So there are no data protection concerns around asking these questions, because they are the ones that we are recommended to ask for a public health perspective, and the Data Protection Commission will consider them legitimate on that basis.
So I wouldn't deviate from these questions for now. These questions again may change over time and we may have further guidance from a public health perspective. But these are the questions set out in the protocol for now. So these are the questions that you should include in your questionnaires. And as I say, they are to be sent out to employees, but also to any contractors that you have returning to sites and over the coming weeks and months.
And I mentioned the NSAI guidance just moving on the next slide, the NSAI guidance I mentioned that and that's, as I say, stands side-by-side with the protocol and talks about obviously social distancing. I suppose this is the trickiest piece and I know that Scott has mentioned this here in terms of social distancing. This is going to be with us obviously for some considerable time in all areas of our lives. And for sure, some people are better at it than others. I've had experiences myself where I've seen some people aren't great at the whole social distancing. I think Irish people in general, it maybe goes against the grain for us to have to socially distance, but this is what we have to do and no more so important in the workplace.
We can anticipate quite a lot of grievances being raised in the workplace about people saying, about employees saying that other employees aren't socially distancing. And this is where I suppose our lead worker representatives and our COVID-19 response team will come into place in terms of having people on the ground who can, you know, take people to task if they're not complying with their obligations remembering that employees also have an obligation to comply from a health and safety perspective.
And I've been asked questions around whether or not you could, for example, discipline people? I would say, "Absolutely, yes." I mean I might move to discipline on day one, and I might give a, you know, a warning to somebody on day one that's, you know, if they're viewed not socially distancing. But you may have to move on to disciplining employees in respect of social distancing as the weeks and months move on. And as people I suppose get more comfortable in their return to the workplace they may forget. So it is very important. And I think the whole issue of reminding people of their obligations, posters up all over the workplace, all of those measures are actually very important in terms of reminding people and reminding employees that they should call each other out if they're not complying with their obligations.
And there are areas for example in the laboratories where a risk assessment may identify that a two-meter separation which is the current guidance on social distancing where that can't be maintained and then we'll have additional safety precautions that would be required in that regards in line with HSE guidelines. And that's where guidance from the HSE, the guidance from NSAI will all come into play in terms of face masks and other personal protective equipment that may be required in those areas where the social distancing can't be maintained for legitimate reasons.
And it will be very important I think again from a training perspective that employees who are used to wearing personal protective equipment for other reasons are reminded that personal protective equipment they're wearing for normal work reasons are not necessarily suitable personal protective equipment to protect them from a COVID-19 prospective. So there may be additional health and safety training required from that perspective. And again, I'll go back to liaising with your health and safety experts will be key in relation to that.
Cleaning workstation is going to be very important. I mean, there are undoubtedly going to be massively increased cleaning costs for employers when we return to the workplace, and have things like door handles and canteen facilities, toilet facilities, desks, keyboards, photocopiers that are used by a large number people, printers that are used by large number of people.
And, you know, employers are going to have to put in very care cleaning protocols and in relations to that and have cleaning products available to employees to be able to clean down various pieces of equipment after they've used them. So again that all comes into your planning phase in terms of all of those additional things that you will need in the workplace. And you will need to be talking to your cleaning companies in terms of, I mean, if you are doing something like we were all doing before lockdown came where maybe you're splitting your shift in your workplace and you have maybe Team X and Team Y as we have in our workplace. And Team X is in on a Monday, Team Y is coming in on a Tuesday. Well then, the workplace needs to be deep cleaned on Monday night in order for Team Y to be able to come in on Tuesday, and then it needs to be deep cleaned again on Tuesday night for Team X to come back in on Wednesday. That is a massively increased cleaning arrangement cost for employers that we need to be taken into account in terms of your return to work at plans.
In terms of just moving on then as I said, the COVID-19 response team needs to be put in place and allowing employees to work from home where possible. I mean, as I said, at the very beginning the roadmap makes this very clear that where employees are remote working and can do so, and are not essentially required to be in the workplace than they should be allowed to do so.
And as I say, the reality is you will have many employees who simply can't go back to work, and even if they wanted to, because they don't have childcare arrangements available to them and they must continue to work from home.
No non-essential travel is very clearly set out in the protocol as are issues around and, you know, restructuring, splitting of teams, maybe staggering starting and finishing times where you want to minimise people's exposure to public transports. Because they would be, first of all, people will be nervous about using public transport and secondly public transport authorities have made it clear to all of us that there will be very reduced capacity on public transport in any event due to social distancing.
And you may be looking at restructuring, splitting of teams, restructuring shift patterns, staggering breaks, changing start times, changing finish times, zoning of your workplaces. And in relation to that, I just want to call out one issue in the protocol that is important to just to take into account, and never more so for those of you that are unionised. On page seven of the protocol which is the section that deals with developing, consulting, communicating, and implementing workplace changes or policies, the protocol says that employers will agree through negotiation with workers, trade unions, any temporary restructuring of work patterns that maybe required to implement the COVID-19 prevention measures in the workplace. In doing so, any existing sectoral agreements must be taken into account.
So if you already have collective agreements that require certain steps to be taken before you change shift patterns or start or finish times or break times, then you will need to take those into account under the protocol if you are making any required changes. One imagines that given that you're doing it to comply with public health advice, you shouldn't be meeting too much resistance in terms of pushback from union reps and employees, but it is important to remember the protocol does set out that you must agree through negotiation. So that maybe is a slightly longer process for those of you who may be unionised with existing collective agreements in place.
Zoning of the workplace is something I want to call out there. The NSAI guidance talks about the zoning of the workplace. This is obviously easier in much bigger organisations, but it is something to keep in mind that you may be able to have different zones in the workplace where employees are required to remain within their own zone and then if they're moving between zones that is recorded on a contact log so that you know that if Jennifer Cashman who is normally in zone A in her workplace has had to for some essential reason move to zone B for a particular reason that that then is logged and traced so that people know that I've moved in the workplace. Because contact logs are also required under the protocol for where groups of employees are working together, so that if HSE in due course looks for details of close contacts of employees for the purposes of notifying close contacts that employers will have a log available.
And I've been asked a few questions by clients as to whether or not because the protocol somewhat confusingly, in my view, makes reference to contact log, does that mean that employers are required to do contact tracing? The answer is categorically not. Contact tracing is conducted by the HSE, and as an employer you take your lead from the HSE. You may very well be contacted by the HSE. If one of your employees is test positive for COVID-19, you are very likely to be contacted by the HSE. You may very well be asked for a contact log to show what other employees this individual may have come in contact with and the Data Protection Commission again has indicated that where you are required to hand that information over by a public health body, that is acceptable from a data protection perspective, but you as an employer are not expected to conduct contact tracing. That is a matter for the HSE and our public health bodies.
Moving on then to the next slide, in terms of our COVID-19 management team, mentioned that already. Contact tracing, as I say, is mentioned in the protocol was very important that, you know, we understand that's an HSE issue. It's contact logs that employers are required to put in place.
The lead worker representatives in terms of who trains those, again, as I say, I would be going back to my health and safety experts. I would be devising any training in conjunction with my health and safety experts whether they're internal or external health and safety experts. And generally speaking, HR will be leading any training whether that induction training for employees coming back into the workplace or training around the lead worker representatives and their role in the workplace that will be led by HR, but again I would not be doing that in the absence of having some input from health and safety.
Just moving on as with some common themes that are coming up for employers in terms of return to the workplace, the use of PPE and the whole issue of temperature testing which is on my next slide there. And I suppose in terms of, sorry, Rolanda, I think I've skipped ahead actually to the next slide again. So in terms of PPE, again employers should be guided by the HSE website in terms of guidance for PPE and also HSE, I mean, we have seen there are some differing guidance now coming out around the use of face masks. And they haven't been made mandatory, but they are recommended in certain settings.
And as I say, there will already be workplaces that have PPE in place for their workers for different reasons, and just to be sure that employees don't mistake those PPE for COVID-19 PPE. So again take your guidance as a sectoral employee, take your guidance from your own sector in terms of what PPE is required, take your guidance from the HSE and from the HPSE website.
Temperature testing, and this is something that's come up a lot in practice for me. And in terms of questions, it's specifically mentioned in the protocol. So the protocol says that employers must implement temperature testing in line with public health advice. Difficulty is there is no public health advice on temperature testing. And, in fact, its view is the temperature testing is not effective in terms of the management of the spread of COVID-19. So as things currently stand, temperature testing is not something that is recommended from a public health perspective.
And therefore, from an employer's perspective, there is no basis for introducing temperature testing in the workplace. Now many of you listening will have already introduced temperature testing in your workplaces. Many of you have continued to operate during the lockdown because you're essential services. And I should say that in relation to the protocol, all employers and all businesses regardless of whether they stayed open during the lockdown are not are subject to the provisions of the protocol. So where you've continued to operate and where you've continued to remain open during the lockdown, you are still obligated to comply with the mandatory provisions of the protocol.
So you must now look at the measures that you've already implemented and go back to the protocol in terms of the measures. And temperature testing is a tricky one because as I say there is no public health guidance on it, so employees could legitimately say, "Well, the public health guidance is the temperature testing isn't required and therefore I'm not going to participation in it. And I think they would have grounds for that, and I think they would have grounds for raising data protection concerns around the use of temperature testing when it is not recommended from a public health guidance perspective at the moment.
That, of course, may change and we may have guidance from a public health perspective that recommends the employers, introduce temperature testing. But as things currently stand, there is no temperature testing required from an employer perspective. And going back to what I said at the beginning about employees having an obligation under the protocol to take care of their own health and safety, I think one practical way of dealing with temperature testing is that employees must ensure that they don't have any of the symptoms of COVID-19 before they come into the workplace on a daily basis.
And therefore one of those symptoms of course is a high temperature or fever. So from that perspective, employers could indicate that employees must take their own temperature before they attend at the workplace and ensure that their temperature is not above at the recommended temperature. I think at the moment is 37.5 Celsius. And that their temperature is not above the recommended norm from a public health perspective. As I say, that norm may change as the weeks go on so we have to keep an eye on that, but that is one practical way of dealing with temperature testing, push it back on the employee and say you take your own temperature before you come anywhere near the workplace, because your obligation to look after your own health and safety, and that of your co-workers starts the minute you start to come to work. So we want you to take your own temperature and make sure that your temperature is not above the public health guidance.
You can say to employees that you don't need to tell us what's your temperature is on a daily basis, because then we are as the employer, processing personal health data which brings a whole set of additional obligations on us. But as soon as you present to the workplace you are effectively telling us that you have checked that you don't have any of the symptoms and that you are satisfied that you don't have any of the symptoms of COVID-19 so that is one practical way of dealing with temperature testing as things currently stand. Because the public health guidance is that it shouldn't be carried out by employers and shouldn't be introduced as mandatory measure by employers. And that's important, because that's coming up a lot.
Just moving on in terms of contractional issues and I know some of these are coming up as questions. And it's clear, look, let's face it, that going forward we've already had to change our ways of working but we also may have to vary employees' terms and conditions. And, of course, any change to a term and condition of employment needs the consent of the employee. And I suppose it will be important to distinguish between what are terms and conditions, things like pay obviously are terms and conditions, hours of work versus what are work practices, so the way that we do our work internally in the office might be a work practice as opposed to a term and condition of employment.
Of course, variation of employees’ contractual terms requires consent. However, having said that where employers are doing it in line with public health guidance, then we do expect employees in line with their own obligations to take care of their own health and safety and that of their co-workers to comply with it, provided the employer is being reasonable and has looked at all other measures in line with their obligations.
But, of course, consulting is really important, explaining to employees why variations are important. Many employers have already implemented pay cuts, and most employers done it by way of fait accompli as opposed to looking for agreements they've just announced that they have to implement pay cuts. Some employers are availing of the temporary wage subsidy scheme and not topping up pay so employees then by defaults have suffered a pay reduction.
And there were all sort of crisis measures which employees may have lived with in the initial days of the crisis. That may become more tricky for employers as things go on employees may become less cooperative. And I think one way of dealing with the reduction in pay may be to also reduce people's hours. I think it's easier for people to live with a reduction in pay if you're also telling them that they're having a corresponding reduction in their hours or not a complete corresponding reduction but some reduction in their hours of work but for sure there are potential claims, payment of wages claims, breach of contract claims, constructive dismissal claims.
Constructive dismissal claims will probably be the hardest one for an employee to bring home, because again an employee must show that it was reasonable for them to take the new clear step of resigning for their employment. And again, if they are refusing to comply with reasonable requests of their employers, a reasonable measure is that their employers have to bring in to comply with public health guidance, it would be much more difficult for an employee to bring home a constructive dismissal claim.
But reasonableness is very important from the employee's perspective, and this goes back to the beginning. It goes back to your risk assessment. It goes back to your safety statement. It goes back to your COVID-19 response plan. You know, are there measures that you need to take and are there any other ways of dealing with this? And if not, then you have no choice but to comply with your public health requirements. And as I say, I think adjudicators, we're guessing but they're likely to have some degree of sympathy for employers in the current circumstances in which they find themselves.
Unfortunately, just moving on to the next slide, just before that the potential redundancies annual leave is coming up a last. And the question is, "Can employers insist on employees taking annual leave at specific times?" The straight answer is yes, they can. The Organisation of Working Time Act very clearly says that the time with annual leave has granted is to be determine by the employer. There are things the employer must take into account, so opportunities for rest of recreation and the opportunity for people to reconcile work and family responsibilities which is probably the most tricky reconciliation for all of us at the moment.
And you are required to consult with your employees or trade union reps at one month before you are requiring employees to take holidays. A lot of employers I've seen different ways of dealing with annual leave at the moment. A lot of employers are saying things like for example employees can have no more than 10 days of annual left by the end of August. And because employers are quite concerned that people aren't taking holidays at the moment, because there is nowhere for them to go, and that where people aren't taking holidays that there will be a huge bank of annual leave to be dealt with.
Some employers are dealing with that by allowing a larger carryover of leave into 2021 annual leave year than they might otherwise allow. It is important to remember though that, you know, annual leave is not just about the Organisation Working Time Act, it's also about health and safety. It's also about your obligations to ensure that your employees have an opportunity to rest. So it is important that you say that employees should take their statutory leave of 20 days if they work 1365 hours and are entitled for 20 day that they should at least take that leave.
Just running onto, because I know when I'm conscious we're running out of time, potential redundancies, unfortunately, that query is starting to come up employees are beginning to look at it a bit more, longer term. And nothing has changed with regard to employer's obligations in respect of redundancy. The only thing that has changed over the last few weeks is that employees who are have been laid off are placed on short time as defined under the redundancy payment legislation are not entitled at the moment to apply for redundancy after four weeks of layoff or a short time like they normally would.
Those provisions of the Redundancy Payments Act have been suspended only up until the end of May. We don't know if that suspension is going to be extended. It may very well not be particularly given that we don't currently have a government that can introduce any more legislation. So from that perspective the opportunity for employees to seek redundancy may very well come back on the table at the beginning of June. Employers must remember that they have obligations to consult both in individual and collective redundancies, and none of those obligations have been supplanted by the current COVID-19 crisis.
So it is important to remember those and just moving on there, Rolanda, I've just dealt with, I've given you the slide there on collective redundancy just reminding you of the thresholds for a collective redundancies if you find yourself in that position as that's on the next slide, Rolanda. And then moving on again, don't forget that you have additional obligations in a collective redundancy situation. As I say, none of those obligations have been supplanted.
Those obligations still exist and still are the same obligations that you always have from a legal perspective even where the redundancies are being implemented as a result of the COVID-19 crisis. So just in terms of key takeaways, and as I say I think you will need to make sure that you are looking at contracts, policies, and procedures. And you need to consider how, you know, your business works and practice, preparing your return to work plan. And fair procedures in effecting any redundancies, how potential changes that impacted employees, adhering to public health guidance really, really important.
And we have an RDJ COVID-19 resource Centre on our website, www.rdj.ie with a lot of insights there both from HR and employment law perspective, and other insights from a tax perspective that may be of assistance to you. Please feel free to use that resource. And in conjunction with Legal Island, we will do our best to get as much information as we can to you over the coming weeks and months as this situation evolves.
Scott: "In relation to the return to work questionnaire and induction,
"Our restaurant," this question says, "reopened a number of weeks ago as a takeaway and those chefs in it have not received training or induction as yet. Should we ensure this is done ASAP?"
I'm going to switch off my camera just because I think my Wi-Fi isn't as strong as it is down in the mighty city of Cork. So I'll dip in with the questions once you've answered them, Jennifer.
Jennifer: Thanks, Scott. And hi, everybody. So the short answer to that question is yes. The protocol was introduced, although it was introduced, obviously, in the last number of weeks, so there are many businesses have either remained opened during lockdown or have begun to reopen maybe in a slightly different form during lockdown. The protocol doesn't distinguish between businesses which have remained open and businesses which are due to reopen under the roadmap for reopening in the five phases set out in mass by the government. So the short answer to the question is that yes, you are obliged and even if you've remained open or reopened recently to comply with provisions in the protocol.
A protocol is a mandatory document as I discussed on the original webinar. So employers are obliged from a health and safety perspective to comply with the provisions of the document. So if you have reopened in the last number of weeks as a takeaway, then you are obliged to complete the questionnaire that must be sent to employees three days before return. Now, obviously, your employees have already returned. But nonetheless, they should still be asked to fill out the questionnaire as soon as possible. And also you should complete your return to work induction training.
And I suppose for you that would be a blend of what you're doing now in a slightly different guise in terms of your premises and how you're dealing with COVID-19 as a takeaway. And then you'll be doing maybe a little bit forward thinking in terms of when you are able to reopen probably on the 20th of July under the roadmap for reopening. You'll be then looking at maybe giving your employees some indication of what protocols and provisions for a health and safety perspective will be in place then. So yours will probably be a little bit of blended training, but that should be done sooner rather than later.
Scott: Okay, thank you very much, Jennifer. Moving on to self-declaration questionnaires. Can I ask you about the self-declaration form which must be completed at least three days prior to returning to work? So very similar to the last one but a bit more nuanced to this question. That may be more applicable for businesses which were completely closed and they're now reopening.
For a business like the one we've just heard from, that remained open since the start of the pandemic, or has opened since the start, how does this apply in the case where employees are coming on site occasionally, where they have been on site already over the last number of weeks? For example, they came on site once a week to sign documents but have worked from home primarily. Should they be completing this form in advance of each time they come on site? And for those employees who are coming on site occasionally, are they required to complete it in advance of each time they come on site and presumably at least three days before they come on site if they have to do it every time?
Jennifer: Thanks, Scott. This question it sounds to me like the premises might actually be closed but that people have to come in for a particular reason at any given point in time. Where that's the case, then I would say under the protocol the questionnaire would not need to be completed until employees are actually returning to the workplace when the workplace is reopening for staff to return. So for example, many workplaces like our own, we reopen soon with what we had in place just before lockdown, which is the team's split into two and the workforce split into two teams and one team coming in one day and one team coming in the next day.
And certainly for us our questionnaires will be filled out by employees three days before that takes effect, by all employees three days before that takes effect. So employers may have had people coming in for different reasons like that question in terms of signing documents, but I would think it's when from the protocol perspective, because the protocol is thinking about the actual reopening of the workplace, the formal reopening of the workplace. So I would say this if you're planning your reopening and either in phase two, three, or five, then those questionnaires should be issued to all of your staff three days before the formal reopening of the premises, however, you're going to do that probably with reduced numbers.
Scott: Okay. And following on from that:
What do you do if somebody deliberately doesn't complete the questionnaire or indeed whether it's deliberate or not? If they don't complete it, doesn't mean they cannot lawfully return to work?
Jennifer: It does, Scott. Because the protocols as I said it's mandatory. So it places mandatory obligations on employers, but it also usefully reminds employees that they also have obligations to comply with the obligations set out for them under the protocol. The protocol clearly sets out obligations on employees as well as employers. So one of the obligations on employees is to complete that questionnaire, that would be a requirement from the protocol perspective and also from a health and safety perspective.
So from an employer's perspective, if they haven't got a completed questionnaire back from an employee, then they should not allow that employee back on site because they don't have the answers to the questions that they need to clear that person to come back on site. The purpose of those questionnaires is to make sure that there's nobody coming on site that could be a risk in terms of the spread of COVID-19. So if you don't have that questionnaire filled out, then you shouldn't allow the individual back on site.
In terms of what you can do thereafter, obviously reaching out to the employee reminding them of their obligation to complete the questionnaire, reminding them that they cannot actually access site and all employees should be told that when they're given the questionnaire initially, that they would not be allowed back in the workplace until that completed form has been received by the employer.
And if they deliberately refuse, then it could be a disciplinary issue. Now, obviously, a disciplinary issue that will have to be dealt with remotely because they haven't filled out the form so they can't return to the workplace. But it may be a disciplinary issue that has to be addressed by the employer. Now because it's COVID-19, I would urge employees to sort of liaise with their employees because the protocol does envisages collaboration between employers and employees. So we'll be reaching out to somebody to find out why they haven't completed the questionnaire.
Is there some particular reason they haven't completed it? Are they particularly concerned about some aspect of the questionnaire? The questionnaire is set out in the protocol. The questions to be asked are set out in the protocol. And as I said, on the original webinar I would urge employees not to set aside the provisions of the protocol because they're the questions that have been advised to be asked from a public health perspective. So it's reasonable therefore for the employer to ask employees to complete that. An employee could in my view reasonably refuse to answer questions which went beyond what the protocol had advised employers to ask.
Scott: Yeah. And that information is confidential. Obviously, it's very sensitive information.
So how should those questionnaires be sent to? Because there are, I suppose, just certain things, certain protocols themselves within the workplace that employers will have to do. I mean, should they use a Survey Monkey type of responses? Should it be a separate questionnaire? How physically should it be done?
Jennifer: A very important question, Scott, because I suppose what we can't forget is that I suppose the protocol has been introduced to them and that sort of supplements the existing legal obligations on employers in the area of, for example, health and safety but also in relation to data protection and GDPR. And the questionnaires that are to be completed by employees will have health data on them. So they're asking questions of an employee about their health status.
And again, as I said earlier, they're questions which you're allowed to ask at pursuant to the protocol but they still the employer would be would be asking those questions and receiving that information back and therefore it is there for processing not only personal data but sensitive personal data or special categories of data as it's referred to in the GDPR because it is health data. So employees have to treat those questionnaires with the utmost of confidentiality and sensitivity, only those in the organisation that absolutely have to see the responses to those questionnaires should see them. Generally, that might be somebody in HR or somebody at management level.
The responses to those questionnaires should under no circumstances be available for light circulation or even to be accessed by anybody other than the organisation than those who absolutely need to see it. I would be slow to recommend something like Survey Monkey. I think, these questionnaires are very important and from that perspective I would be encouraging employers to liaise and with their employees maybe via email on the basis that it's something that it's not as sort of a bulk issue. It is a very sensitive questionnaire which needs to be addressed sensitively.
So I'd be slow to recommend something like Survey Monkey and I would be encouraging employees to do the most secure transmission of questionnaires and answers that they can arrange and generally speaking that might be via email. And employees themselves I suspect would be concerned to see how employers are dealing with that information. So if employers want cooperation from their employees, then they need to make sure that they're adhering to their own obligations.
Scott: Okay. Thank you very much. And we will come to the lead worker representatives in a moment and on some of the issues that cover in there, just the practical issues. But one of the things that will definitely be in place in workplaces where it can happen is social distancing. So we have a few questions have come in during your last presentation that we couldn't answer, so we're looking to answer them here. Then next question says,
"What advice do you have for sales teams who need to attend client sites for business meetings especially where the employees company is mandating work from home but the client has an expectation to meet in person?"
So seems a bit strange here that the client hasn't caught on that social distance and working from home are the norm now. But it appears that isn't in this particular firm. So any advice there about people who have to go to meetings?
Jennifer: In that regard, Scott, I'd start by saying that the protocol states that meetings should be held virtually and where the availability is to work from home, then that should be maintained. That's set out in the roadmap for reopening and it's also repeated in the protocol. So that is, and remember, as I said earlier, the protocol is a mandatory document. So just because employers have clients who may have expectations, it's the employee ultimately that has the liability. So it is a matter for the employer to determine what the rules are around their own staff and what their own staff and can and can't do regardless of what client expectations might be.
So in those instances, I think there needs to be communication between the management and the employer site and the client site to find out what exactly the client's expectations are and why those expectations are as they are. Because if you, like you say, one would imagine the client would be in a similar position to the employer in terms of possibly being close or having people work remotely. So I suppose you need to have an offering to the client, you need to have the option to do video conferencing or some other way of dealing with meetings on that basis. And I think everybody's gotten very used to that way of working over the last number of months. So one would imagine that would be something unusual from the clients' perspective.
Where it is viewed the face-to-face meetings are absolutely necessary. And I would urge that they should be absolutely necessary because at the end of the day, you as the employer are putting yourself at risk if you are asking them to do something that isn't absolutely necessary. So for example, for us as lawyers, it might be absolutely necessary for us to meet somebody face to face to sign some documents. And if that's the case, then the length of those meetings should be kept in an absolute minimum. They should be held in well-ventilated rooms. The participants must socially distance at the meeting. So there must be a meeting room that can accommodate the social distancing of the participants at the meeting. But again, here, I think I do need to highlight that employer obligations probably trump client expectations. So I think the employee needs to liaise with its client in that regard and find out exactly why the client has an expectation of face-to-face meetings, particularly in the current circumstances.
Scott: Yeah, suppose the difference here might be between delivery people and the salespeople and the salespeople probably don't have to go to a meeting. But once they've got the order, they're going to have to deliver it. Moving on to a slightly different question but in the same area of social distancing.
What advice can you offer if it's not physically possible to have a two-meter distancing in the workplace due to the nature of work? For example, a manufacturing production line. Are there specific safeguards the employer can take to ensure staff who have to work in this way are sufficiently protected, for example, PPE? Or is it necessary to go to that extent?
Jennifer: So, yes, and the protocol does make provisions for the fact that there will be workplaces and types of work where social distancing won't be possible for whatever reason. So in those types of cases, then you're probably looking at sort of types of engineering controls that actually that will have to be put in place. So maybe redesigning a production area to move people around screening to prevent droplet spread, increased ventilation, as I mentioned, for meetings earlier and less physical contact with the product where it's possible to do so. And so obviously those measures may take some time to implement.
There are then other measures like physical barriers to your plastic guards between workers, maintaining a distance of at least one meter if you can't maintain the two-meter distance, and minimising direct worker contact where it's possible to do so and providing readily accessible hand washing and hand sanitisation facilities have been very important there.
Also PPE I suppose, from the perspective of PPE, there's a lot of talk about PPE and a lot of discussion about face masks for example. Face masks are not mandatory and they are recommended under public health guidance for example in crowded public transport and in retail settings as a customer or as a consumer. So they're recommended in those types of settings but not in the occupational workplace setting. So there is no mandatory facemask requirements in the workplace setting, but certainly employees could look at maybe inventing things like those physical guards that cover people's faces.
There will be jobs that already have PPE attached to them. Very important I suppose to highlight that existing PPE won't be sufficient from a COVID-19 perspective. So just because people already use PPE in a particular setting like a lab setting or something doesn't mean that that PPE also doubles up as a COVID-19 PPE. So it will be important, I suppose, to get your health and safety consultancy either on site or external involved in that regard in terms of what additional safeguards you could put in place for employees who are already required to provide PPE. But the protocol does recognise that there are circumstances where the two-meter distance may not be possible due to the nature of the work.
So there's all those physical things that you can look at putting in place and addressing and that will again be quite state specific. So again, that will need to be looked at on the basis of a risk assessment from a health and safety perspective. The protocol then goes on to talk about contact logging. And that is really important in a setting where employees can't maintain the social distancing. So, essentially, the Return to Work Safety Protocol requires the contact logging takes place. It's the employer's obligation to put a system in place for contact logging. And I suppose in its most simplest form, what a contact log actually is, it's a list of colleagues with whom an employee comes in contact and over the course of their shift that were unable to observe the two-meter distance for longer than 15 minutes.
And then the contact log will state the date that the individuals came in contact and the names of the colleagues and their department. And the purpose of that contact log is ultimately that may be sought by the HSE. If there is a suspected or confirmed case of COVID-19 in the workplace, the HSE may look for that contact log in order to make contact with individuals who are then consider to be close contacts with the individual who has tested positive for COVID-19. So for any employer where the social distancing is not applicable or can't be implemented, then that contact logging piece is really important. And the protocol talks about that.
It probably doesn't talk about this to be honest with you in enough detail. It's quite light on detail in terms of what that contact log should look like. The NSAI guidance documents which I referred to in the original webinar, give a bit more detail in terms of what contact logs might look like. So they're a good place to go for additional guidance. And then each individual sector tends to issue its own guidance as well to employers. So it will be important to look at your own governing bodies or organisations that might have additional information for you, additional assistance for you in terms of contact logging.
But it's the responsibility of the employer to have available the contact log. And then it's the responsibility of the employees themselves to fill in the information in the contact log. Obviously, they will need to be trained on that and that will form part of the induction training that we spoke about at the beginning of the webinar. And then I suppose, effectively that contact log would be maintained on a daily basis. So there would be a daily log of employees who couldn't maintain their social distance. So for those workplaces, you're looking at the addition of physical and engineering type scenarios that can be put in place and also the contact logging, which would be very important.
Scott: Yeah. And of course, all of that thing would be discoverable if somebody takes a claim. And I think we discussed the last time that it'll be relatively easy for employees to establish that they caught COVID-19 in a workplace if a number of people end up catching it. You know what I mean as you're trying find to cause and effect. So keeping those logs if an employer doesn't keep a log, that's bound to be held against them going forward. If there is some kind of claim, just as if you don't keep logs of working time it's held against you and the employee tends to be believed.
So moving on to something that's related. And you can come back on that point if you like.
Can you clarify temperature checks must be carried out? The Return to Work Safety Protocol states on Page 8 under the “employers must” category that employers should implement temperature checks. However, when we checked, this question says, with the HSA workplace contact unit, they say it is not a necessity on the public health guidelines. Do you have some insights on this?
Jennifer: This is quite confusing and coming out a lot for us from a legal perspective for . . . the RDJ employment team is dealing with a lot of queries on temperature testing. The protocol does indeed state temperature testing will be carried out but it talks about being carried out in accordance with public health guidelines. And that's the important piece because as things currently stand, there are no public health guidelines around temperature testing. It's not considered to be an effective way of alleviating the spread of COVID-19. So from that perspective, as things currently stand, although temperature testing is referred to in the protocol, it is linked to the current public health guidance, which in turn does not mandate temperature testing.
So there is no requirement for employers to introduce mandatory temperature testing in the workplace. That's point number one. Point number two is that a lot of employees have introduced it anyway, Scott, because maybe they've remained open as an essential service during lockdown. And they've introduced this sometimes or in many cases in response to a demand from employees to have it introduced because employees want to see safety measures being implemented in the workplace. And because a lot of organisations are global organisations whose headquarters elsewhere in the world may have introduced temperature testing and are sort of rolling it out across the globe.
From an Irish legal perspective, very, very important to remember that temperature testing carries with it huge data protection and GDPR significance. So if you do it incorrectly or do it not in line with data protection and GDPR requirements, then you could be getting yourself into quite a lot of trouble. So if you are introducing temperature testing or have already introduced temperature testing, you need to be aware that first of all it's not mandatory from a public health perspective. So an employee could legitimately say, "This is not something that is required from public health perspective and I don't intend to cooperate with this and I am concerned about my data protection rights from that perspective." An employee could legitimately say that where the current public health advice is that it's not mandated.
And, secondly, if you are introducing it, then you do need to take into account your data protection obligations. A lot of employees say to us, "All we're doing we're doing, we're doing a live temperature check. We're just checking the person's temperature. We're not keeping . . . we're not storing the information. We're not we're not keeping the information anywhere. We're just taking Jennifer Cashman's temperature. She walks into work to make sure that her temperature isn't high." That is the processing of personal data. And there are huge implications from a data protection and GDPR perspective.
So you must take specific advice in relation to that if you plan on introducing temperature testing with thermal cameras or however you plan on doing it. But the public health advice is that it is not a requirement, it is not mandatory, and that may change the protocol. It has been described as a living document. So as public health guidance changes, then the protocol may also change. So maybe down the line, the public health guidance will change and we'll say that we should have temperature testing in the workplace, in which case the protocol as a living document will then change with that public health guidance. But the current position is that there is no requirement for employees to introduce temperature testing in the workplace, and I would be very slow to do it to be honest because of the data protection and GDPR implications of it.
Scott: Okay. And there's a follow-up question, Jennifer. You're down in Cork. There's lots of U.S. firms down there. And this question says,
"If a company is based in the U.S. with a site in Ireland and insists that all staff looking for them need to be temperature tested daily, can we still enforce it?"
Jennifer: And I think I sort of covered that a little bit in my last answer insofar as it's not mandated from a public health perspective in Ireland. You can as an employer introduce temperature testing but you will need to do so taking into account your data protection and GDPR obligations. And from that perspective, what might have been introduced in the U.S. or in Singapore may not at all be appropriate from an Irish legal perspective. So you should take specific advice in relation to what you plan to introduce here to make sure that you're complying with your local legal obligations.
Scott: Okay, thank you. One of the areas that we've had so many questions and inquiries from at Legal-Island is on lead worker representatives, which is very much part of the Return to Work Safety Protocol. So I have a series of questions here and one of them is how many?
So how many lead worker representatives are required in the workplace as a number of employees or number of employees, for example?
Jennifer: So, no. Scott, the protocol simply says that the protocol mandates appointment of at least one lead worker representative. Now, I suppose one of the criticisms of the protocol is that the protocol is a mandatory document that applies to every organisation, whether you're a large multinational with 1,000 employees or a small corner shop with two employees. And so the protocol doesn't distinguish between employers based on size. And so the protocol sort of have a one-size-fits-all approach which probably a little bit unhelpful from an employer's perspective. And so there will be sort of . . . you will have to take what the protocol says and then apply it to your own organisation.
So the protocol says at least one. So if you appoint just one, regardless of the number of employees you have, then you are meeting your obligations under the protocols. And it does then, however, recommends that the number of representatives appointed will ideally be proportionate to the number of workers employed. So no exact ratio has been specified in that regard and under the Safety, Health and Welfare at Work Act 2005, the employers is only obliged to ensure that at least one safety representative is elected. But obviously could agree to more than one being elected.
I think most employers that I've been speaking to are taking a bit of a sensible approach here in terms of sort of choosing a number that they feel is proportionate to the number of employees that they have. That would be 1 for some employers and it might be 10 for others. So I suppose you do need to be cognisant of staff numbers. I suppose the purpose of the lead worker representative is that they act as a conduit between the employee population and management. So it's a sort of collaborative role that will be a point of contact between the employee population and the management population.
And I suppose to be fair to the lead worker representatives, it would be unfair to have just one in a very large population of employees where they may in fairness not be able to get to everybody or be accessible to everybody. So I think employers need to take a sensible approach in terms of the number of lead worker representatives that they have proportionate to the number of employees that they have. But if you just appoint one, then you are complying with your obligations under the protocol.
Scott: Yeah, I think the problem there is that a lot of organisations, a lot of workplaces have different types of workers and therefore the requirement and the safety requirements for different groups would vary. And it might be better to have one from each of the various groups or something for some employers or, as you've just mentioned, maybe have a representative number for every 100 or 200 workers. Or it just depends on the structures.
Jennifer: Yeah. And you're absolutely right, Scott, where you have different levels. And certainly what we've done at our organisation is try and have sort of one representative from each of the sort of representative groups in the workplace so that everybody feels that they have their representative and that their representative feed their points back to management. Because I suppose the protocol talks a lot about consultation and collaboration between employees and employers because I suppose really it's going to be very hard to get your employees back to work if they don't feel that they're being listened to and they don't feel safe and comfortable about the workplace that they're going back to.
So you really have no choice as an employer but to consult and collaborate with your employees about the return to work and what that's going to look like and to help you to do that. It's much easier if you've a smaller population of people to talk to like the lead worker representative who can take the points from the employee population and then feed them back to management.
Scott: Yeah. And there's a question here,
"Can the lead worker rep be a manager?"
I suppose managers still need to have representation there as a group. It'd be unfair if the only people that don't get their views taken into account are maybe junior managers.
Jennifer: Yeah, absolutely. And that comes back I think to the levels in the organisation that we would kind of look at maybe putting a lead worker representative for each of the levels. And certainly, there's if you're only appointing one lead worker representative, then should that person be a manager? Probably not because the argument would be that, as I said, they're supposed to be a conduit between management and the employee population. So if you're only appointing one, then to have a manager would arguably not be representative for the employees. But where you're having a number across the different levels, the absolutely your managers should be entitled to have a lead worker representative like everybody else. Absolutely.
Will lead worker representatives have any potential liability if something goes wrong?
So if they go, "Yeah, we can have temperature health checks in here because it is an indication to some extent that somebody has got something wrong with them," potentially, and they the go, "That's great. We'll have a temperature check as you walk through," and then something goes wrong. Is the rep liable in any way if they've agreed to something?
Jennifer: No. I mean, I suppose the most important thing for the reps is they're doing this in the course of their employment. I mean, there is no additional payments, for example, for being a lead worker representative. So most employers are going out looking for volunteers for people to act as a direct representatives. So those individuals that come forward are acting in the course of their employment. So it's part now of their job to be a lead worker representative for COVID-19. Which means that I suppose from an employer's perspective, you'd be adding in in their KPIs for the year their role as a lead worker represents and how they're fulfilling their obligations in that role because it is quite an important role in an organisation. And they certainly should be recognised for it by way of, as I say, having it included in their KPIs so that it's not just something else they have to do on top of everything else.
But in terms of their own liability, I mean, it's like any employee doing anything in the course of their employment. As long as they're doing something in the course of their employment that they've been instructed to do by their employer, then there should absolutely be no question of personal liability in respect to the lead worker representative would obviously only come to pass that they might have some liability if they did something completely outside the course of their employment or outside of the normal and reasonable remit of their job.
And that goes for every employee, whether they're a lead worker representative or not. So if you're working away and doing things in the normal course and things go wrong, as of course they will, then they should absolutely be no personal liability from the lead worker representative perspective. And lead worker representatives don't have decision making powers per se under the protocol. They are a conduit between the employees and management for sort of feedback in terms of how things are going from the perspective of the workplace and the measures being put in place for COVID-19. So there should be no decisions, per se, in any event taken at that somebody would point to the lead worker representative and say, "Well, you took that decision." Any decision should be an employer organisational decision. The lead worker representative may have fed into that by saying, "Look, I've gotten this feedback and I think we should do this." But that wouldn't impose personal liability on the lead worker representative. No.
Scott: Okay. And they don't actually have authority to make decisions, but they will be consulted on.
What happens if the employer does something because the employee rep says, "Yeah, that sounds good," and the employees don't like it? Are there issues there?
We're moving on to the next one about nominating the lead worker here to liaise with employers. It feeds into kind of appointment of health and safety reps, trade union representatives, that kind of thing. Is that an issue if the workers say, "You're just a management lackey"? Is there anything that can be done? It doesn't seem to be much in the protocol about removal of lead worker representatives or anything?
Jennifer: No, there isn't. I mean, it's not just for unionised employment, it's for all organisations. As I said, the protocol is a one-size-fits-all. So it's not just for unionised employment. I suppose the unions had a large part to play in terms of devising the protocol. So there probably is an element of people thinking that, "Well, maybe then it's just for unionised employments." It's not. It's for all employment. And I suppose, again, as I say, their role is a conduit between the employees and management. So there are different ways I suppose of putting in place lead worker representatives such that they will be appropriate representatives for the employees. So they can be voted in or you can look for volunteers. Most employers are looking for volunteers. And if you've got too many volunteers, then you could maybe call a vote or look at, again, as we said, whether or not the people who've come forward are representative enough of the different levels in in the organisation.
But they're not decision makers, per se. They're a conduit so that employees can go to the lead worker representative and say, "I have a concern about X, Y, and Z." Or, "I have a concern that people aren't socially distancing in the workplace." Or, "I have a concern about this measure, or I have a concern about something I've been asked to do." And that the lead worker representative can then feed that back into the COVID-19 response team in place in the workplace.
Scott: Okay. And I suppose that maybe some employers just use the trade union reps, so the health and safety officers and such like that they currently have or the health and safety rep that they currently had.
Is there any specific training that's required for lead working representative as opposed to ordinary workers needing induction additional kind of required for these people?
Jennifer: Yes. So there is the protocol set out that the lead worker representative is entitled to receive the relevant and necessary training by their employer. Now what that actually consists of isn't set out in the protocol. And then again, it will depend on the nature of your business in terms of what kind of training they will get. But some of the things that we'd advise you to consider and some of the things that we're considering in the training of our own lead worker representative, which has already started is, you know, I suppose, an overview of sort of some of the broad basic employee obligations which apply to the lead worker representative sent to every employee in the organisation arising under health and safety law, and arising under the protocol how to undertake the role.
So how does the employer foresee that they'll actually be undertaking their role as lead worker representative. So what kind of communication is going to go out to the wider staff grouping, issues of confidentiality, data protection, how to gather a document to record any queries that may be given to them and how those queries are going to be followed up. Guidance, obviously, in terms of the measures that have actually been put in place in the workplace in terms of hygiene and social distancing, the physical barriers and measures that have been put in place. And then guidance on supports available for staff like your employee assistance program, for example, or any sort of HR policies and procedures that are there that can support employees so that the lead worker representative can point employees to appropriate policies and procedures or appropriate support mechanisms if needed.
I suppose Healthy and Safety Authority has published those helpful checklists and templates, which I referred to the original webinar on their website. And, again, they'd be very useful I think to go over with your lead worker representatives in terms of the measures in place in the workplace. So I suppose the lead worker representative, you need to think about the fact that they will need time to actually carry out their functions. So again, I think this is why I said earlier, I think it needs to become part of their actual overall role in the organisation that this is something that's going to be accounted for and taken into account by the employer so that people don't feel like they're just being lumped with more work on top of an already existing workload.
And I suppose, undoubtedly, I think we're going to see maybe grievances and some protective disclosure issues arising when workplaces reopen around the protocol and the health and safety measures. So again, I think in terms of lead worker representatives being aware of the correct communication channels for matters being raised with them and the correct policies and procedures to follow when matters are raised with them or the appropriate person in the organisation to refer on any concerns that they receive so that those concerns are dealt with under the appropriate policy and in the appropriate way. So this is quite a bit from a lead worker representative perspective in terms of the training and the information that they need to get.
Scott: Okay, thank you very much. Last question on lead worker representatives. This person that sent in this question seems to have a setup in place.
"If you have a COVID-19 workplace team all along" -- they've had for quite a while – "as a crisis management group, which includes management and workers, does this fulfil the criteria for the protocol?"
Jennifer: Well, you'd want to appoint one of those workers as the lead worker representative so that you're meeting your obligation under the protocol to have a lead worker representative. So somebody, at least one or more people on that team would want to be appointed as lead worker representatives to fulfil all of your obligations under the protocol.
Scott: Thank you. We'll move on to our second penultimate, second last penultimate, I don't know what that means, question area of redundancy. Unfortunately, it's going to happen for a number of employers. So this question here says,
"We are unfortunately looking at making some of our staff redundant at our shops. The last in, first out rule will most likely apply. This means that the majority of staff selected will be those with less than two years' service and therefore not entitled to redundancy payment. Are there any complications with dismissing employees with less than two-year service? And what procedures do we have to follow?"
I think you did an article recently for us on that as well, Jennifer. But looking at that question there, you've got to select some people, you're likely to get the ones with the least service, but that does bring some problems. So what are those?
Jennifer: Well, I suppose it's more rather than maybe then problems. It's just that just because an employee has less than two years' service when being made redundant, all that means in reality is that they don't have an entitlement to a statutory redundancy payments. But of course, they still have an entitlement to take if they have more than one-year service, for example, a claim against you for unfair dismissal. Or, in fact, they have a right to take a claim against you under the employment equality legislation for alleged discriminatory dismissal but they don't need any period of service qualification for that. So just because somebody has less than two years of service in a redundancy situation, all that means is that they don't have an entitlement to a statutory redundancy payment but they are still being made redundant. So all of the same rules apply to them as would apply to somebody with 15-year service from the organisation.
And those rules depend on whether or not it's an individual redundancy, in which case you would have consultation with the individual employee for a two-week period where they're placed at risk of redundancy and there is a consultation period with them before ultimately the decision is made to make the role redundant. Or alternatively, there could be a collective redundancy situation depending on the numbers. And again, in my original webinar, I've gone through the threshold numbers which apply to turn something into a collective redundancy. So again, there are special rules that apply in a collective redundancy situation which are enshrined in legislation and in terms of an employer having to notify the minister and also having to engage in a month long consultation process before a notice of redundancy is actually given.
So as I say, the less than two-year service is a little bit of a misnomer because that only means that they don't have an entitlement to statutory redundancy payment, but their employment is still being terminated on grounds of redundancy and therefore all of the usual legal provisions apply. And you're absolutely right, Scott, I did how do I handle it article in the last number of weeks for Legal-Island where I addressed the exact procedure that employers needs to consider when they're implementing redundancies that aren't collective redundancies.
Scott: Okay. Thank you very much, Jennifer.
In a redundancy situation where an employee has less than 104 weeks service or similar one to the last, employers are required to give one-week notice. However, they will be advised that they have 10 days, or the employees will be advised they have 10 days to appeal the decision. Ten days is what all employees are advised during any disciplinary situations. So are we correct to assume that 10 days to appeal must be offered during redundancy situations as well regardless of the notice period, 2 weeks, 4 weeks or whatever is under the contract, is this correct? Or could we reduce it to five days to appeal?
Jennifer: We could reduce it to five days. But also I think it's important here and there's a bit more to this question than meets the eye because where somebody is being made redundant, so where the decision is made and their redundancy is confirmed, then they are given the opportunity to appeal. If we don't have a policy that sets out the number of days for an appeal against a decision to make their job redundant, then we can choose an appropriate appeal limit. And five working days would be reasonable in the circumstances. So I don't have a difficulty with that.
But for example, if we are telling somebody that they're being made redundant and we're paying them and do have notice, then their termination date would be the date that they finish up physically in the company. So it would be important to sort of, I suppose, to highlight to them that their redundancy will take effect, the termination of their employment will take effect. And that if their appeal is successful, then that they may be reinstated if their appeal is successful, but that the redundancy will still take effect on the date that it's supposed to take effect because it's the same as dismissals.
It's very important to clarify and there's case law on this. It's very important to clarify for employees in a situation of an appeal that the dismissal takes effect in any event, notwithstanding that they have time to appeal. And that then if they're successful in their appeal, then they will be reinstated back to the date of dismissal. So the same would apply in a redundancy situation unless we have a policy or a custom and practice that says otherwise. So there may be a policy or a custom and practice of the organisation which sets out that the person remains employed during an appeal process. In that case, then we're stuck with that and they do have to remain employed during the appeal process. But alternatively, they should be advised very clearly in writing that notwithstanding that they have an opportunity to appeal, the termination will still take effect and they'll be reinstated if their appeal is successful. And that's really important from a legal representative.
Scott: Because the impacts or how long they've got to take a claim such like it depends on the effective date of termination or those types of things. And of course, some of those consultation issues have an impact for some employees as well because the consultation period might take them past 104 weeks. So those are quite detailed issues and that should be in touch with RDJ if you want further information.
Jennifer: Yeah. Absolutely, Scott. And I think it was important for employees to realise that just because somebody has only five working days to lodge their appeal, the appeal then has to be addressed. So there has to be a possibly an appeal hearing. And so it won't just be five days, the appeal process could be a number of weeks depending on how long the process takes. So it is important to remember that the person could be in your employment a lot longer than you had anticipated if you don't make it clear that that is not the case or if there is no obligation on you for that to be the case. So it's very important to get that right.
Scott: Yeah. And it's all being done remote them at the moment as well. I think they're important issues. Moving to the last area here, last couple of questions.
"Deep clean, has it been defined anywhere?"
Jennifer: No, the protocol doesn't say address it. It talks about deep clean but it doesn't define it. But the protocol does point to the European Centre of Disease Prevention and Control for further guidance regarding cleaning. So if you go to the European Centre of Disease Prevention and Control, you will find information around cleaning there. So the protocol itself doesn't deal with that but it does talk about the European Centre of Disease Prevention and Control which will help.
Scott: Okay. And finally, last question of this recording,
"What if employees cannot work from home or refuse to return because they do not have childcare provision? What does the employer do in that situation?"
Jennifer: This is going to be a tricky one, Scott, for sure. And employers are already anticipating that they're going to have issues around this because even where employees do have childcare available, it looks now looking a little more positives that childcare for everybody might be available from the end of June rather than from the end of July as we had originally anticipated. It sounds a little bit more positive that it might be the end of June now when employees have childcare available. For sure employers have to take into account that there would be situations where they want people to return to the workplace but people simply can't return to the workplace because they don't have childcare support available to them. That will certainly be the case for the month of June in any event.
Thereafter I think employers are anticipating that they'll have issues that crèches might be stricter in terms of when they'll turn children away in terms of children being sick or being concerned about their health situation. So employers are already anticipating that they may have people ringing in saying, "I can't come in because the crèche won't take the child." So this is going to be a tricky one for employees for sure I think for the rest of this year I think. I think there's going issues around this. My colleague on our team, Lefre deBurgh has done an insight on the whole issue of employees and returning to work and not being able to return to work.
I think the first point will have to be sort of consultation with the employee to find out what the issues are thereafter I suppose, ultimately, where there is childcare available and where that's not the issue, but where something else is the issue, where somebody's simply refusing to return to work because they say they don't feel safe. So you have this sort of worried well scenario. Then for those employees, we could be looking at maybe disciplinary issues down the line. We could be looking at layoff without pay if they simply refuse to come back to the workplace. And we are satisfied as the employer that we have put in place all of the measures that we are obliged to put in place under the protocol.
But it would be important to sort of not move to disciplinary immediately. And particularly I think employees will get quite high degree of sympathy from somewhere like the Workplace Relations Commission in light of this pandemic. So for employers it will really have to be a consultative approach with employees in the initial stages, trying to reassure employees that they have put in place all the measures, going through all the measures that have been put in place, and encouraging them to come in and have a look at the measures and get comfortable with the workplace.
But as I say, where there are legitimate reasons like child care and employee, they're just going to have to make provision for that in terms of either facilitating working from home, maybe placing employees on layoff if it comes to that and so they can claim whatever government supports might be available to them. A lot of employers are availing of the temporary wage subsidy scheme. That might still be available. We're still waiting for confirmation in terms of how long that's going to be extended. So there would be all of those issues to consider.
But where employees have all of the support available to them like child care under simply refusing to return to work, then we are getting into trickier territory in terms of maybe having to look at things like disciplinary or suggesting that the employee will have abandoned their employment if they're refusing to come back. But it's going to be a tricky one for employees over the next couple of months. And I think employers would have to tread carefully and consult as much as possible with the employees to try and encourage people to come back to work as quickly as possible.
Return to Work Safely Protocol: COVID-19 Induction Training
The purpose of this course is to explain what is expected of individuals as they return to work. Workers must understand the risks of Coronavirus (COVID-19) to themselves and their colleagues, the risk to your organisation for non-compliance with the Protocol, and their own personal risk of contracting the disease, in event of non-compliance with health and safety measures put in place in response to the Protocol.
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The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.