An Audience with RDJ (July 2021) Covid-19 Vaccination Status and Redundancy

Posted in : Webinar Recordings on 29 July 2021
Michelle Ryan
Ronan Daly Jermyn
Issues covered: Covid-19 Vaccinations; Data Protection; Redundancy Payments

During this webinar Scott Alexander was joined by Michelle Ryan, Senior Associate at RDJ. They discussed the data protection implications of seeking information on an employee’s covid-19 vaccination status in light of the proposed directive from the HSE that frontline health staff will have to indicate their vaccination status.  They  also discussed the further extension to the suspension of Section 12a of the Redundancy Payments Act preventing employees who are laid off making a request for a redundancy payment. 

 

Transcript

Scott: Good morning. Welcome, everybody. My name is Scott Alexander. I'm from Legal-Island. Welcome to the latest of our series of webinars with Ronan Daly Jermyn that we're looking at contemporary issues in employment. And today we have Michelle Ryan from RDJ. Just let me tell you a little bit about her. I think most of you know me. I'm head of L&D at Legal-Island.

Michelle is an associate solicitor within the firm's employment department, and has wide-ranging experience advising on all aspects of employment law. Michelle also has built specialist expertise in data protection and privacy issues and is a member of the firm's cyber and data protection team. Michelle also is recognised for having considerable experience in contentious matters and regularly represents clients before the courts, WRC, and Labour Court... And I see there were new guidance issued today. It'll be in your weekly update tomorrow from the WRC, just about hearings because the new act comes into operation today regarding oath-taking and public hearings and so on.

She also provides in-house training and information sessions for clients on areas such as grievance and disciplinary procedure, performance management, whistleblowing, and GDPR. Michelle tutors in employment law for the Law Society and is a regular contributor to the IRN and to Legal-Island's email service. So if you get the "How do you handle it?" issues from RDJ from us, then that's who writes them, is sitting in front of you.

So today, we're going to be looking mainly at vaccinations in the workplace to do with COVID. We're also going to be looking at redundancy issues if we have time. We'll be here to about quarter to 11:00.

And before we kick-off, you can see there the Annual Review. This is your last chance to book and have a chance to get your money back at the Annual Review of Employment Law, which as you can see is online on 24 and 25 November.

If you want to go to legal-island.ie you can see the full programme and indeed the . . . Just even looking at the first day, we have Jennifer Cashman, Michelle's colleague, who will be doing her review of the year Part 1. She'll be ending up on Day 2 to "Looking Forward". The first one looks back at the main issues.

And even just the first two sessions there we have Caroline Reidy from The HR Suite doing "Bullying at Work or Proactive Management" to do with the code. We also have . . . just chatted a bit of the WRC. We have Gwendolen Morgan, the registrar from the WRC, talking about the administration of justice and constitutional right to a fair hearing and what now for WRC hearings. So that's just three of the many sessions that we're having, so if you want to register for that, go ahead.

Now, before we take your questions, just have a look at your right-hand side of the board and you will see that there's a little tab saying Questions. So if you submit those, I'll ask them anonymously to Michelle as we go along once we've dealt with a few of the preliminary issues.

Poll Questions

Now, let's get you thinking. Let's have a little poll to see what you're all thinking today about vaccinations, COVID, and all that. So, we have Katie and Rolanda in the background. And here is the first poll question coming up.

 

Now, Michelle, you can see the impact or the way that people are thinking at the moment. Two-thirds, more or less, of the audience think that employees should be required to disclose their COVID-19 vaccination status. We'll be coming back to that, but any comments at the moment?

Michelle: I think that's a very interesting result, Scott, and very much tallying with what we are seeing from clients ourselves. I think the requirement or the discussion around disclosing COVID-19 vaccination status is something that's really being driven by employees themselves who are concerned not only for their own health and safety, but of course for the health and safety of their colleagues in the workplace. So certainly that is a trend that we are seeing and the poll tallies with that.

Scott: Okay. Let's look at our second poll question. These are all anonymous. We don't know who's voting and how you're voting. We're not going to read it out either. But if we look at the next question, "Have staff raised concerns with management about working with non-vaccinated colleagues?"

So from the other end, you're an employer, most of you, you're in HR, and the first one two-thirds of you thought they should be required to disclose it. Let's have a look here with your colleagues. Are you as HR professionals being asked by your staff and do they have concerns?

Okay, let's have a look at that because that's a very interesting one as well, Michelle. Have a look at that. Almost 50%. 46% are saying yes. So half of the audience here today are saying, "Look, we're getting some kind of concern from staff that they don't want to work with non-vaccinated colleagues". So any comments on that?

Michelle: I suspect that the reason the answer there is so balanced is because we're still all working from home, so I think maybe the answers to that might be a little different once the return to the workplace starts to become more imminent, and we have a lot of clients who are obviously working on it. But at the minute, the majority are still working from home.

And I suspect once the return to workplace is starting to be mandated by employers and employers are looking at a return to the office, then I would suspect that the "yes" would start to overtake the "no".

We have had some queries from us in relation to employees who are back in the workplace, but I suppose we're at a position where the vaccination programme, while it's progressing extremely well, not everyone is vaccinated as of yet who is within the categories, where the vaccine is available to them. And so I think this is something that is going to become a much bigger issue once the workplace is back open and people are back in offices.

Scott: Yeah, I was listening to the radio this morning and they were saying on RTE that Ireland should be overtaking, on vaccination numbers anyway. They've already overtaken the U.S. and they'll be overtaking the UK in the next week or so after a fairly slow start. So interesting one there.

Final poll. We're going to look at redundancies. If we have time, we'll look at that later on. And the question here is, "Has your organisation carried out any redundancy exercises as a result of COVID-19 pandemic?" i.e. "Has it impacted on your business to the extent?" So let's have a look at that. Again, this is all anonymous. We're not going to go to anyone or share this information. We don't even know who's voting anyway. So give it another second. Okay, stop it there, Katie.

Here we go. Exactly a quarter of this audience has carried out redundancies as a result of COVID-19. Now, suppose we hope that they'll now be turning into a situation where the number of vacancies are out there are requiring them to bring people on, albeit maybe in new types of jobs. But that's a sobering statistic there, that a quarter of this audience has made redundancies.

Michelle: Absolutely, and very much on point with what we're seeing with our own clients. Again, given the suspension of the operation of Section 12 of the Redundancy Payments Act, where employees on long-term layoff aren't entitled to claim redundancy currently, I suspect if that provision is not further extended when the current emergency period expires at the end of September, it may be possible that there will be further redundancies at that stage.

However, that is a sobering statistic and is certainly one of the very real outcomes of the pandemic for the last year in terms of the impact on individuals' employment.

Scott: Okay, thank you very much, Michelle. Katie, if we could stop showing that one there and we'll get back to the discussion here. If you just joined us late, we're joined by Michelle Ryan from RDJ. We're looking at vaccination in the workplace. So we're going to be, in particular, looking at data protection and other information about seeking information on employees' COVID-19 vaccination status.

And as Michelle just mentioned there, we'll be looking at the end at what the suspension of Section 12A and the continued extension of that suspension means for employees in the workplace. Given that 25% of this audience have had or have made redundancies, 75% presumably have not, and that might be because you're taking advantage of the subsidies at the moment. So we'll see what happens later.

Vaccine Status and the Law 

So, Michelle, we've had the poll. The bulk of this audience would prefer that employees were required to indicate their vaccine status, and just under half of the audience have had concerns raised by employees. And I noticed a little comment has come in there from one of the listeners that staff haven't raised concerns but clients have, and I'm sure that's another aspect. We didn't ask the question, yet another aspect that clients are concerned about safety of people going into premises and so on.

So what's the background? What's the situation and the law as it maybe applies in Ireland at the moment in relation to vaccination of staff?

Michelle: Yeah, absolutely. Thank you, Scott, and good morning, everybody. It's great to have you all here today remotely, and great that we have this facility. Thanks to Legal-Island for having me.

But look, I suppose, generally speaking, COVID is primarily a health and safety issue. And employers, of course, have a legal obligation under the Safety, Health and Welfare at Work Act to do what they can do to protect their employees and maintain a safe pace of work. Equally, employees themselves have that obligation to ensure that they're protecting their own health and safety and that of their co-workers.

I suppose the whole issue of vaccination in the workplace must be balanced with the individual's rights, their rights to bodily integrity under the Constitution, their right to privacy under the European Charter of Human Rights. And there are also potential equality issues arising with looking at the issue of vaccination in the workplace where employees may have religious reasons for not wishing to be vaccinated, and that may, in turn, give rise to potential discrimination issues under the employment equality legislation. So we are operating, I suppose, against that general backdrop.

In addition, I suppose it's very important to note that, like all vaccination initiatives that our government has implemented in the last 70-odd years, they have all been voluntary, and the COVID-19 vaccine is no different. The government hasn't mandated that individuals must get the COVID-19 vaccination.

And indeed, the World Health Organisation has urged governments not to require individuals to be mandatorily vaccinated. So I think that's key. If the government isn't requiring individuals to take the vaccine, it will be very difficult for any employer to insist on an employee being vaccinated. That is, I suppose, the backdrop that we are operating in, and looking at that individual right.

There is, of course, case law, from the European Court of Human Rights on the whole issue of mandatory vaccination, where the courts previously have looked at whether or not states can oblige individuals to be vaccinated. A lot of the case law is around the vaccination for diphtheria or hep B in children. And in those circumstances, the courts have held that a state can, in certain circumstances where there is a legitimate aim and the measures used to achieve that aim are proportionate.

And in a recent case last year, a case against the Czech Republic, the European Court specifically referred to kind of a pandemic-type situation. So there is precedent there for states to require individuals to get a vaccine.

However, the COVID-19 vaccine currently in Ireland, it is voluntary. The Work Safety Protocol, which deals with vaccination, again, confirms that the vaccination is voluntary, that it's a matter for each worker to consider whether or not they are going to avail of the vaccine.

So that, I suppose, is the legal arena that we're operating in. The position is where the government isn't requiring an individual to get vaccinated, the leading view is that it would be very hard for an employer to justify a requirement for an individual to be vaccinated.

And I suppose this is, again, against the backdrop where the current medical position is, that a vaccinated individual can still contract the COVID-19 vaccine. So it isn't the case that the COVID-19 vaccine is a silver bullet and will eradicate any health and safety risks in the workplace. That is just simply not the case. Notwithstanding the availability of the vaccine, all of the existing public health infection prevention and control measures, such as hand sanitisation, mask-wearing, physical distancing, all of those measures continue to apply.

So, again, where there isn't any public health guidance that vaccination is a necessary safety measure, it will be difficult for employers to justify requiring individuals to be vaccinated.

I suppose I would caveat, Scott, my general discussion today with I do feel that the leading position here, and what we speak about today, is possibly going to be subject to change. At the minute, there isn't any public health advice in relation to requesting vaccination status information from your employees. That, of course, is subject to change, and so I would caveat our discussion today by saying I think, like everything with COVID-19, this is an area that is going to evolve.

We've seen it with mask-wearing initially, where the very firm advice was that individuals didn't have to wear a mask, and obviously then that position was changed once the medical evidence became more clear in relation to how the virus was actually spreading.

So I do feel, like everything with COVID over the last year and a half, that this, I suppose, is subject to change and it's very important to constantly review the up-to-date public health advice in this area.

Scott: I think maybe the difference here, Michelle, is that every single one of us has an opinion on whether we get vaccinated or not. We've either done it or we haven't, or we haven't done it perhaps because we haven't fallen into that category yet. But I'm sure the vast majority of the listeners here will have been given the opportunity to get a vaccine. And most of us will know people who have had COVID, or who are suffering from long COVID.

We were on a chat before we went online and I was doing a bit of research there before we went live, and I was looking at the UK situation. Their Office of National Statistics, which is similar to CSO, estimate 1.1 million people in private households in the UK are experiencing long COVID. That is they have had symptoms for months.

There was an article in "The Irish Times" on 6 July from a Donegal GP who reckons that 50% of their patients who contracted Coronavirus are suffering from long COVID. The doctor says, "Symptoms do dissipate over time, but we have a sizable cohort of patients who have not gone back to work six to eight months after getting COVID".

And "The Sunday Life" on the Sunday past said that almost 21,000 people in Northern Ireland are suffering from long COVID.

I couldn't find stats for the Republic of Ireland, but if that is replicated down here, then you're looking at somewhere in the region of maybe 50,000 people are effectively disabled or have been disabled for months. So this is an issue that impacts on employers, but every single one of us has a view. And the view of this audience is, "Okay, maybe we can't force people to take the vaccine, but are there things that we can do if they refuse to get the vaccine?"

Vaccine Status and Data Protection Issues 

So let's maybe tease out some of those. The first question that we had was about asking people to disclose. So what are the data protection issues? You've mentioned the privacy rights and human rights acts and so on. What about data protection in particular? Can an employer say, "We want to know whether you've been vaccinated or not"?

Michelle: Even aside from the privacy issues and the right to bodily integrity, there is certainly a large question mark over whether or not employers are entitled to ask employees if they have been vaccinated.

The Data Protection Commission has recently just published guidelines setting out the Data Protection Commissioner's view on this issue. And the very clear guidance from the Data Protection Commission is that there is no general legal basis at present for employers to request vaccination status information from their employees at this time.

So as we all know, vaccination status, that is an employee's personal data. It is special category data for the purposes of GDPR, or it's data related to their health. So in order to process that data, or collect that data, an employer would need a lawful legal basis to do so. And the GDPR at Article 9 sets out a number of different circumstances when a data controller, in this case the employer, may be in a position to process that data. One of those, of course, is explicit consent.

However, in the employment relationship, the general position is that due to the imbalance of power in that relationship where the employee is deemed not to be in a position to fairly bargain with their employer, they're incapable of giving a valid consent.

I suppose there's nothing to prevent employers from asking employees to volunteer that information. But I would caution that by saying it is very difficult to rely on consent.

So looking then at if you can require employees to provide that information to you, there is provision in the GDPR where I suppose you could rely on that it is a necessity in terms of maintaining the health of the public. But of course, that aim must be proportionate, and any data collected must be limited to what's necessary.

The Data Protection Commission's view is that, at the minute, there is no clear advice from the Irish public health authorities in Ireland that it is necessary for employees to establish vaccination status.

And I suppose, on foot of that, it is the Commissioner's view that the processing of vaccine data is likely to be deemed excessive and that there is no clear legal basis for employers to process that data.

In the guidance, the Data Protection Commission has had regard to the fact that it's currently unclear that if employers were to process that data, what the purpose of that data collection would be. I suppose that is their rationale in finding that such data collection would be excessive.

So, for example, if the public health advice were to be updated to say that non-vaccinated workers should be segregated in the workforce, the Data Protection Commission has said in those circumstances where there would be a clear purpose as to why employers would collect that data, that may allow employers to collect the data. But at this point in time, there is no clear legal basis.

Now, of course, the Data Protection Commission in their guidelines have recognised that there are going to be exceptions in certain situations, which would be based on sector-specific guidance. So in that regard, they have specifically referred to previous guidance that exists within the medical profession.

The Medical Council have advised that where a vaccine is available, that medical professionals should avail of that vaccine. So the HSE, for example, would most likely be justified in asking their staff to confirm their vaccination status, and that the HSE would be able to rely on the legal basis of necessity in order to justify that data collection from a data privacy perspective.

But currently, in the absence of any public health guidance in relation to vaccination status being a necessary health and safety measure in the workplace, generally speaking, employers would not be in a position to request that information from their employees.

 Scott: Okay. So if we take that . . . because the questions are coming in here, and I know that employers asked a question that a lot of people would think. How can an employer actually provide the safe system of work, which they're required to do, without knowing vaccination status? Does that mean the workplace will need to err on the side of caution and maintain social distancing, all those other safety protocols, perhaps forever? Where does it lie if you're trying to get back to normality, if you like, or if . . . I suppose it goes hand in hand with the provision of services.

Merrion Street posted the video there on Facebook about how to get your digital COVID certificate. So you've got this passport effectively to get into concerts or wherever. What's to stop an employer saying, "If you come onto our premises, you've got to have this"? Is that because there's a statute behind the requirement?

Or if you're trying to get back and say, "Look, we're all relatively safe", or if we look at our poll there, where almost half of the audience is saying their own employees or giving them grief about not wanting to work with people, do you face that down and say, "No, hold on. We can't do it because the law doesn't allow us"? Or can you turn around and use the fact that there is pressure from customers and from staff that only vaccinated people deliver services or work together?

Can you use that as an excuse to say, "Look, if you're not vaccinated, we don't want you in this workplace, or we don't want you coming onto our premises"? Is that allowable in any way?

Michelle: I think, Scott, it's about striking a balance between the individual's rights on one hand, and then the protection of the workplace and co-workers generally on the other hand. And I would be of the view that each employer . . . it's not a one-size-fits-all approach. Each employer will have to look very specifically at what is needed in their particular workplace to preserve health and safety.

And I would be of the view that an employer would have to look at all other options before laying down a rule that employees have to be vaccinated in order to return to the workplace.

I suppose, again, that's against the backdrop of our public health advice, which is that vaccination is just one part of the fight against the COVID threat. It's still the case that an individual who is vaccinated can contract the virus and potentially transmit it to other individuals. So it isn't the silver bullet, I suppose, that maybe we had hoped that it would be, and because of that, all other public health protective measures are still advised to be maintained by employers, so the physical distancing, mask-wearing, ventilation, face covering. So certainly, those measures will have to be continued so long as that is the public health guidance.

Also, employers will have to look specifically at their own workplace and their own risk assessments to see what measures they need to put in place in order to, I suppose, eliminate, insofar as possible, the transmission of COVID-19 in their own workplace.

So given that we're primarily working against that backdrop, in terms of mitigation, I think employers would be advised to liaise with their health and safety experts to assess the specific sector risk for them.

And again, if you look at the Work Safety Protocol, there is reference . . . while I suppose on the one hand the Work Safety Protocol recognises and very much is very clear that vaccinations are voluntary and it's a matter for each individual worker to decide whether or not they're going to avail of the vaccine, there is reference in the Work Safety Protocol, for example, to redeployment where an individual is unvaccinated and there is a significant risk arising in those circumstances. Say, for example, in a nursing home situation, it may be justified.

So I would be of the view I suppose is that on an individual basis, employers should conduct specific risk assessments. There may be certain circumstances where the risk is so great that it would warrant redeployment in circumstances where an individual isn't vaccinated.

But I suppose I would caveat that with it needs to be done in line with your Data Protection obligations. I certainly would be of the view that any processing of vaccination data would need to be conducted only after completing a Data Protection Impact Assessment. And certainly, I think, at the minute, based on the guidance that we have in the Work Safety Protocol and also from the Data Protection Commission, that it's really where there is a health risks

Scott: Okay. I mean, the difficulty for employers is they get it from both ends, of course. If they don't gather the information, they lack information to be sure that they're trying to provide it as perfectly as possible. If somebody isn't vaccinated and they get COVID, they're much more likely to end up in a hospital and therefore be off for longer, and employers are going to have to pay those fees and statutory sick pay, etc., as it comes along, as well as contractual sick pay. So they're getting it from that end.

We have a question in here, which is,

"Can a vaccinated person refuse to return to office-based work if their employer cannot provide a safe working environment, particularly Category 4 persons with serious underlying medical conditions?"

So you have an employee who says, "Look, I have some kind of immune problem here, immunity issue. I want you to provide me with a safe working environment, and I want to know that everybody at the very least is less likely to get this virus or pass it on, and are more likely to take maybe a more considerate approach to social distancing and so on because they've got the virus. They're more responsible. I want to work with responsible people. I'm not coming back". So what does the employer do there?

Like I said, they're getting it from both ends. The employees are saying, "I'm not coming into work unless people are vaccinated". And you're saying, "Well, we can't force anyone to be vaccinated". And even if it comes to redeployment, you're looking at specific areas where they might pass it on to vulnerable adults in a care home. We've at least two people who would be in that category in Legal-Island and would be at risk if this office was full.

Michelle: I think again, Scott, in that situation, you'd be looking at a specific workplace risk assessment. And I suppose looking at are there any other additional measures that the employer could consider to mitigate against the risk for that individual, such as maybe temperature testing, or additional kind of air filtration systems, depending on cost and budget. Of course, again, there's no one-size-fits-all approach. But certainly looking at conducting a specific workplace risk assessment for that situation.

 Scott: Yeah. We've got another one here, just to throw some simple questions at you.

What about a situation where you have clients coming in for face-to-face meetings with staff? Can the employer ask if they are vaccinated?

 Michelle: I think the disconnect that we have here in terms of the recent guidelines from the Data Protection Commission is, of course, this is against the backdrop of the government guidance for the hospitality sector in relation to dining indoors and vaccinated individuals. So it is difficult.

In terms of clients attending on sites, they are not employees. So, if there is a legal basis to request that information, then I suppose the company will need to be satisfied, based on its risk assessment, that it is necessary and proportionate to collect that data.

 Again, you're asking for sensitive personal data in relation to those visitors coming onto your site. So, are there other less invasive, less intrusive measures that might be more proportionate, which would effectively have the same health and safety mitigation effect as asking for the vaccination status?

So again, you're looking at maybe mandatory temperature testing, which also gives rise to that data protection considerations in and of itself but is permissible provided that the appropriate Data Protection Impact Assessment is carried out. And in terms of temperature testing, you don't need to retain that data. The advice would be that no log is kept, for example, of the temperature. It's simply to obtain the temperature.

As I mentioned, perhaps ventilation systems. I've seen work very effectively, in the hospitality sector and on sites is this technology in terms of maintaining social distancing, that there would be kind of a tracker or an alarm that would go off if an individual is too close, if they breach the two-metre rule. So, there are other measures.

I think, again, like anything with data protection, proportionality is key. How are you balancing the individual's rights against the aim that you are seeking to achieve? And if there are less invasive ways which you can achieve the same result, then you would be mindful to look at exploring all of those avenues first.

Asking for someone's vaccination status shouldn't be your first port of call. It should be the last port of call if, having reviewed the situation in conjunction with your health and safety experts, it is clear that there's no other option for you.

 And again, I would caution that in the absence of any clear public health guidance around this area for visitors to sites, for workers, it might be difficult to justify it.

 But I think the legal position is one thing, but certainly, from the questions and the poll this morning, I think it's very clear that the majority would like for vaccination status to be disclosed in the workplace. And I do think that public pressure in this regard may result in some updated guidance from our public health authorities on this.

 Scott: Yeah, I suppose the difficulty is a lot of people think that if you're vaccinated, you're a lot safer. The bottom line is if you just had vaccinated people and no social distancing and no mask-wearing and such, the rates would go up anyway, as we have seen where people we've had people mainly vaccinated in the population now going out and the numbers are starting to increase, wherever that situation happens and people go out.

 There are a lot of questions coming in here that we've got there. There are a few comments. "Medical staff have to provide full vaccination history, in particular proof of TB vaccination. Would this not be the same?" Again, that's specific to those in health.

We've got another question here. Let me read this one out here.

"In our canteens, we're only approximately 30 employees on site. And pre-Delta, we had four employees socially distanced at one time. Now our manager advised they're allowing only fully vaccinated into the canteen and those not vaccinated have to eat in their cars. I think this is unfair to colleagues who choose not to get vaccinated or have medical conditions where they can't get vaccinated. What's your advice on this?"

So, this is action a bit like redeployment. It's not dismissal. It's more proportionate than that, but it's still some kind of detriment. And you can see the counterbalance, where we had two-thirds that are saying, "We want to disclose the vaccinated status". That meant a third didn't, and this is the third presumably who are saying, "Well, hold on a second. My colleagues have been excluded from the canteen. It's socially distanced. They don't want to get vaccinated".

 What could that individual or those individuals do who are having action taken against them by a supervisor saying, "You're not getting in here. In your car"? 

Michelle: Yeah, I suppose, again, Scott, it's the issue of mandatory vaccination as a public health and as a health and safety measure has to be balanced against the individual's right. So if an individual doesn't wish to be vaccinated, that is their right to do so.

The Work Safety Protocol, and indeed the government guidance on the vaccination programme, generally is that this is a voluntary process, and that is recognising that the rights of others in society to be kind of protected must be balanced against the individual's rights.

So, I suppose in this circumstance here, unless the employer has conducted a specific risk assessment and identified a specific legitimate need to segregate individuals in the canteen in the manner in which this individual has been segregated, there are possibly issues there.

 For example, if there are religious reasons as to why an individual wasn't vaccinated, there could be potential discriminatory issues. As the vaccination programme has been more successful, and as you said, after a slow start, we're really moving forward. But initially, there were potential age discrimination issues, given the manner in which the vaccination programme was rolled out, that it wasn't available to younger individuals. So, if they were adversely impacted by a decision of an employer in relation to mandatory vaccination, that could potentially give rise to claims on grounds of age, or potential breach of the individual's rights to privacy.

 But I think in the first instance, if the individual were to challenge it internally, they should do so in line with the internal policies and procedures within their organisation.

Scott: Okay. We had a question that came in before we broadcast, and I want to go through it. It's about a different tack, if you like.

"What can management communicate regarding restrictions if staff test positive whilst on annual leave, as they could be out for 10 days after being on holidays? Can we make them aware to be mindful, and they will have to apply for a COVID-19 payment if they do have to self-isolate? 

So, we're trying to minimise the number of cases. Let's say to folks, "Look . . ." It used to be the case you couldn't travel abroad. But what about the situation now where people are going anyway? And it's a fairly risky thing to sit in a plane presumably for four hours to go to the Canaries.

Michelle: Absolutely. But I suppose, again, that is each individual's right to choose whether or not they're going to travel. And again, we're operating against the backdrop now where non-essential travel has been reopened, where the government currently are permitting people to travel for non-essential purposes. Again, an employer would have no basis to implement a policy advising employees that they're not permitted to travel for non-essential purposes. The position is that the government have advised individuals are now free to travel again as of 19 July.

Of course, there are practical implications and employers need to be proactive in updating their policies and procedures and their COVID travel policies to provide for situations which may occur. The advice is you can't ask if an individual is vaccinated, but you can ask an individual when they would expect to be in a position to return to work, for example, after a period of travel.

Of course, the general position under the Organisation of Working Time Act is that annual leave must be taken at times that suit both the employee and the employer, having regard to the employee's right for rest and recreation. So, it is possible for an employer to refuse that new leave requests where there is a business reason to do so.

For example, at a busy time of year, if the leave doesn't suit an employer, they may refuse it on that basis, where in terms of travel, because of the risk of COVID-19 infection, I think where the government guidance is that essential travel is open, I think it would be fraught with potential for legal challenge for an employer to implement a policy that employees are not permitted to travel abroad.

But of course, employers should be educating and informing their employees, making it clear what happens in the event that an individual is not in a position to return to work following a period of travel.

At the minute, each EU state is implementing their own kind of traffic light rule system for travel, which is subject to change. So, employers should be advising employees prior to travelling that they need to check the most up-to-date guidance.

There is provision in the EU for this so-called emergency brake mechanism, which could arise if an employee, for example, travels to a country that had no issue, but if there was a spike in infection while the employee was there, they may be stuck there. What happens in those circumstances? So the employer would need to address these in advance in their policy documentation.

It would be, in my view, very difficult to, for example, discipline an employee who got retained in a foreign jurisdiction because of the emergency brake mechanism. But an employer would be within their rights if the employee is not in a position to return to work to put that individual on a period of unpaid leave, for example.

So again, it's about being proactive, looking at your policies, addressing these situations, and educating your employees, and being sure that you are communicating with them, and I think as well encouraging them to avail of the vaccine. There's no difficulty with that. Indeed, employers should be opening that dialogue and having that conversation with employees.

But in terms of travel, it, of course, can present challenges, but where the current advice is, that essential travel is open, I think employers won't be in a position to prevent employees from travelling.

Scott: Yeah, and the cases in Ireland being what they are, it's difficult to say that it's more dangerous than going somewhere else.

So I'll take a final question here, which has come in. Again, a different angle, but I think it's quite an interesting one.

"Some companies provide paid time off to employees to go to their vaccine appointment if during work hours. From a data privacy perspective, would it be reasonable to request that an employee who avails of this leave shows their manager evidence of their vaccine app so the leave can be approved?"

Michelle: Look, I suppose if it's a benefit to employees, how are they . . . is the employer going to collect that data, or is it simply kind of a trust system? Are there potential discrimination issues there if individuals who, for example, aren't willing to take up the vaccine for religious grounds aren't in the position to avail of this extra leave that individuals who are getting the vaccine are getting? So I think that the policy generally . . . there are potential issues with that.

But in terms of asking for proof from the individual, I would be slow to ask for their vaccine passport. I think if they wanted to show the text message with their appointment details, that might be reasonable, but the employer certainly shouldn't be retaining any of that data so that they aren't . . . I suppose that it's proportionate, that it's limited to what's absolutely necessary, and it isn't retained in any way.

Scott: Yeah, I suppose the offer there is applied to everybody and that at most it would be indirect discrimination. But you only get it if you go to an appointment. It seems reasonable, and it does come down to trust.

Michelle: Yeah, and I think it's something we're seeing across the board. Again, it goes back to an employer's obligations under the health and safety legislation. So it is correct for employers to be encouraging employees to get the vaccine, and there is no issue I suppose with doing so, and providing time to individuals to get their vaccine is a necessary follow-on from encouraging individuals to get the vaccine. But I suppose it's just about being careful that you're not inadvertently creating a log of all employees who have availed of the vaccine.

Scott: Okay. Now, we're kind of out of time, but we'll extend out a little bit if that's okay with you. The questions that have come in there, folks, that we haven't managed to do, we'll pass on to Michelle and her colleagues at RDJ. Hopefully, we'll get a "How do you handle it?" type of email in the future dealing with that. You can see it's such a big topic.

The Extension of the Suspension of Section 12A of the Redundancy Payments Act

But there was one last thing that I want you to have a little look at, Michelle, and it shouldn't take long at all. It's the further extension of the suspension of Section 12A of the Redundancy Payments Act. So what is that and what does it mean, and are we ever going to see this thing not extended?

Michelle: Yeah, it's a difficult one, Scott. The general legal position as set out in Section 12 of the Redundancy Payments Act is that where an individual is put on layoff for 4 weeks, or for a period of 6 weeks and a larger period of 13 weeks, that they are entitled at that point to claim redundancy from their employer rather than stay on layoff.

It's an entitlement that the employee can elect to trigger, so the employer doesn't need to do anything. The employee can remain on layoff if they choose. But where the layoff has continued, an employer is entitled to claim a redundancy payment.

And if the employer isn't in a position to provide work, having received that notice, then the employer must implement the redundancy and make the appropriate statutory redundancy payment.

So, with the onset of COVID, that provision in Section 12 of the Redundancy Payments Act was paused by legislation, which effectively reduced the scope of that provision by saying it isn't effective during an emergency period, which was defined in the amending legislation.

That emergency period has been on-going now since March 2020. It's been extended on four occasions, and most recently, it has been extended up until 30 September this year. So that means effectively someone could've been on layoff from 13 March 2020, to 30 September 2021, and are not entitled to claim a redundancy payment by virtue of the suspension of the operation of Section 12.

So, the most recent extension up until 30 September, Leo Varadkar had previously commented that that would be the last extension, that there wouldn't be any further extensions. But it remains to be seen whether or not there will be a further extension.

I suppose from an employer's perspective, the suspension was very welcome at a time where there was great business uncertainty, that there wouldn't be the additional costs of a statutory redundancy. As you know, the previous rebate that existed was abolished. So, it has been welcome from an employer's perspective.

From an employee's perspective, however, it's very difficult, because if an employee wished to resign to take up an alternative role . . . so if they're on layoff from their permanent employment, they can't claim redundancy because of the suspension of Section 12. But if they resigned to take up a job elsewhere, they're losing their entitlement to redundancy, which could be significant depending on their length of service with their employer.

So, I think, for those reasons, the government is under pressure not to further extend the operation of Section 12.

There is a provision for employers if the extension isn't extended to avail of an interest-free loan from the Social Welfare Fund in order to satisfy any redundancy payments that might be due.

So, there will be a mechanism there to support employers who may be hit with a number of panes for redundancy once the section is no longer suspended.

Scott: Okay. Thank you very much, Michelle, for explaining all of that.

So, folks, thank you. That's the end of today's webinar. You can listen back if you're a subscriber on the website. It should be up this afternoon. We will be getting this transcribed, so you will see the answers to all the questions that you've been sending.

There are Michelle's details if you want to contact her. We'll gather up those questions and send them off to RDJ and see if we can get a future written document with the ones that haven't been answered, if you like, through one of their regular monthly how-to-handle-its as we're coming through.

Our next webinar is going to be on 12 August. We're going to be looking at disciplinary and grievance management with Caroline Reidy from The HR Suite. So if you want to join us, you'll be able to log on to legal-island.ie. Just go to the events page.

Michelle, thank you. Everybody else, thank you, and the background, Katie and Rolanda. Thanks, everyone. I'll see you again. Bye-bye.

 

 

This article is correct at 29/07/2021
Disclaimer:

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.

Michelle Ryan
Ronan Daly Jermyn

The main content of this article was provided by Michelle Ryan. Contact telephone number is +353 21 480 2700  or email michelle.ryan@rdj.ie

View all articles by Michelle Ryan