An Audience with RDJ (May 2021) Discussion Around the WRC Adjudication Service, Redundancy & Face Masks

Posted in : Webinar Recordings on 19 May 2021
Antoinette Vahey
Ronan Daly Jermyn
Issues covered: WRC Adjudication Service; Redundancy/Collective Redundancy; Face Masks

In this webinar recording, Antoinette Vahey, Partner with RDJ discusses the following with Scott Alexander:

  • WRC Adjudication Service – following the recent Supreme Court case of Zalewski -v- Adjudication Office & ors [2021] IESC 24 the WRC has made a number of changes to the operation of its Adjudication Service.  The impact of these changes for cases in the system and those going forward and how the WRC are likely to approach them will be reviewed.
  • Redundancy/Collective redundancy – the inevitable removal of Government supports is likely to lead to an increase in the number of job losses as a result of redundancy.  This webinar will address issues such as consultation; redundancy while on lay-off; impact of closure of premises and relocations; impact of remote working, etc.
  • Employees refusing to wearing face masks – giving rise to issues in the workplace and also under the Equal Status Act due to refused entry to services.

The Recording

Transcript

Scott: Good morning. Welcome to the latest webinar from Legal Island, and of course, a series of broadcasts that we're having with RDJ, that's Ronan Daly Jermyn. And today we have Antoinette Vahey with us, and we're going to be looking at a number of topics. I'm Scott Alexander. I'm head of L&D at Legal Island.

Now, Antoinette is a Partner at RDJ in Employment Group. She has extensive experience providing practical and strategic legal advice to clients in a range of areas such as wrongful and unfair dismissal, discrimination, absenteeism and work-related stress, performance management, temporary and contingent workers, collective redundancies, restrictive covenants, and severance agreements. She also devises in-house training sessions and policies for clients in respect of grievance and disciplinary matters, dignity at work and social media. That's quite the package there, Antoinette, so welcome. How are you?

Antoinette: I'm very good, Scott. How are you this morning?

Scott: I'm always good. I'm always doing fine, I’m always in fine fettle. I like working from home. And I was in the office yesterday with one of your colleagues, Jennifer Cashman, we were doing a wellness event. And so I went into the office to make sure that the Wi-Fi worked. So hopefully it worked today, because I'm working from the house. So but yeah, I'm super duper . . . this weather doesn't dampen me, doesn't dampen my spirit.

Antoinette: I know. At least it's Friday, so we can latch on until weekend.

Scott: Yeah, and it's going to improve sometime by July or August. So we'll be fine. Anyway, we're going to move on to today's topics. Now we have a couple of polls, so if you just joined us for the first time, we like to make sure that you're still out there, because you can't see any of the audience. So we'll let you take part in a little poll. And what we're going to do is do a couple of questions. These are all anonymous. Okay? These are all anonymous, and if you want to answer that question. Does your organisation require employees to wear masks whilst in work? We're going to look at what happens with employees who refuse to take masks. That may be extended to those who don't get vaccines. It depends on your questions. So give you a little time. We're not recording names or anything. Just click, "Yes or No." I'll give you a couple of seconds more. Don't think it's going to change much. Okay, Rolanda, that's grand. Let's have a look at those results. So there we go. We have, "Yes" is 83%, and "No" is 17%. That's a lot higher than I thought it would be. Rolanda, I can't see anyone here.

Rolanda: I'm not quite sure what's happening, Scott. Webcam seems to . . .

Scott: The webcam seems to have died?

Rolanda: Stopped?

Scott: I'll try and get it back on here. Sorry about this, folks. This never happened before. So here we go.

Rolanda: I'll just go onto the next poll.

Scott: Antoinette, are you here?

Antoinette: Yes, I'm still here. But I believe you cannot see me.

Scott: The webcam has gone off. So we'll just go. We don't always use webcams. But for whatever reason, GoToWebinar said it doesn't like us anymore. But yeah, so we've got that poll there. That's 80-odd percent are here . . . are saying that they do require masks. That surprised me. I was going to say, that's surprisingly high figure. Maybe lots of the audience are people who are in hospitality and such like, but do you wear masks in your workplace?

Antoinette: We do when it comes to going to the . . . maybe the more common areas or the outside areas near reception. But I suppose I should say, from an office perspective, we have actually, largely been closed and working from home since December, since the new restrictions were put in place. And really at this stage, we're requiring employees to just come to the office when they absolutely have to. So I suppose we're lucky enough that we can mobilise our employees to work from home. But I have to say in terms of my experiences in the office when I'm at the office, is that people are largely wearing the masks, I guess, when they get up from their desks. It's not for any directive, but I think people are just that bit more safety-conscious and conscious of being around other people, so they are taking the opportunity to wear their masks.

Scott: Okay, well, that's very good. Let's have a look at the next poll. We're back. There you go, we're back. I don't know what happened there. And we've disappeared again, but it will come back when the poll is finished, I presume. So your second poll, folks, that we've got here, and this is the last one, and we're going to be looking at the WRC later on today.

So this question here, do you have any concerns about giving evidence under oath at Workplace Relations Commission public hearings? Of course, I'm following the Zalewski case. Hearings at the WRC are going to be in public, unless there's good reason not to do so. And you're going to be required to give an oath or an affirmation. So we have 22%. Maybe stop it there, Rolanda. We can look at the results. Here we go, yes, a quarter of them, Antoinette, are concerned. More than half say, no, no problem at all. 18% presumably will never be in the WRC hearing to go through. Any comments on those figures?

Antoinette: I guess, you know, a lot of people were probably used to the Employment Appeals Tribunal system, which did require you to take evidence under oath. So it's probably not something that concerns them now that that's being introduced to the WRC, and of course, any matter that is under appeal to the Labour Court. The Labour Court currently require people to give evidence under oath. So perhaps people have just . . . are a little bit more comfortable with it as a result. But in terms of evidence under oath, I guess, you know, some people have expressed concerns about the formality of us and maybe that is, perhaps, more intimidating, and for them to give evidence when they know what's under oath. In truth, it is just an oath or affirmation. It's shared with you in advance, and so you know what you're actually what oath you're going to have to give. It is going to be a requirement, I suppose, going forward. So people have probably reconciled themselves to that at this point.

Scott: Okay, thank you very much. We've stopped sharing those polls. That's brilliant. Thank you very much. If you just joined us, that's Antoinette Vahey from RDJ Solicitors. I'm Scott Alexander from Legal Island, and we're going to be talking about a number of things, including the two poll questions.

Now, you may be interested here. We have a new eLearning course. eLearning is one of the things that exploded at Legal Island. Actually, has been really well since lock down. Unintended consequences, I suppose, is that people have taken advantage of training stuff when they're not in the office, and one of the most cost effective ways is eLearning. So we have a new course on the "Right to Disconnect," obviously tying in with the code. And if you're here, €10 per staff member. So if you're interested in that, we will write out, or just to make sure you can interact, you see this little question box on the right-hand side of your screen. If you want to drop "Yes" in there, then we'll get Debbie, from our team to get in touch with you after the event. So you can drop "Yes" into the question box.

Now, we're now going to move on to our subject. And like I said, there are questions there. If you've got any there, just drop us a line, and I'll read them out anonymously. I know who they are, but Antoinette won't. And we're going to look at three areas. The first one ties in with that second poll, which is WRC Adjudication Service. The second one is about employees who refuse to wear masks, presumably, take other reasonable instructions in relation to COVID-19 protocols and such like. And the third one, we've got there is redundancy and collective redundancy issues that might come in, particularly, the changes to those who can claim redundancy if they've been laid off. And we had a late question about working time regulations and the Organisation of Working Time Act. So we might, if we have time, get around to that.

Changes to WRC following Zalewski

So let's have a look here at the first one. There was a case a couple of months ago, Zalewski went to the Supreme Court. Antoinette, so maybe give us a bit of background about that, and why it has now led to a massive change in the way that adjudication hearings are going to be heard.

Antoinette: Sure. So Zalewski was a case of unfair dismissal that went before the WRC for hearing. Now it's transpired at the WRC stage. The first day of hearing was adjourned due to the unavailability of witnesses, and it was assigned an adjourned hearing date. But from there things seem to take a bit of a turn in terms of how the case progressed. And so when the parties returned on the adjourned date, they were informed by the adjudication officer that she'd actually already made her decision. And that effectively, that was going to be sent to them following the day. So there was no hearing, there was no adjourned hearing undertaken. And it was a bit of a mess, I suppose, from that perspective.

And so unsurprisingly, Mr. Zalewski and his legal team brought proceedings to the high court from two perspectives. The first was to quash the decision of the adjudication officer that had been made largely on the submissions that had been provided to the WRC in circumstances where witness evidence wasn't examined or offered in the case. And the second was to get a declaration from the court that the WRC was not constitutional given that it was involved in the administration of justice, which should be confined to a judge in the courts.

So I suppose just in terms of the WRC itself, a bit of background on that because it's relevant to the issues that were examined in the court system, excuse me. So it was set up in 2015 for the adjudication of employment disputes. Now, at the time, there were a number of bodies, you might recall, we had the Employment Appeals Tribunal, we've the Equality Tribunals, we've Rights Commissioners, with the Labour Relations Commission. And the idea was to pull all of that together into one body. And so I think certainly, in terms of the grouping of all of those bodies into one was certainly helpful from both a practitioners' perspective, but also people using the services.

I guess it changed into an amalgam of what would have been the Rights Commissioner Service and the EAT, Equality Tribunal platforms that had been provided previously. And in the first instance, cases, all employment rights cases were going to the WRC. They were adjudicated on by one person adjudicator. There was no sworn evidence required, and hearings were to be held in private. And as a result, the names of the parties were to be anonymised. There were no formal qualifications required of the adjudication officers. I suppose this changed certainly from the unfair dismissals, you know, examinations, which would traditionally have been held by the Employment Appeals Tribunals, who had a legally qualified chair. So it was a slight difference at that stage.

And I guess the idea was to make hearings much less formal and intimidating for the parties. But also at that point, there was a huge backlog of hearings. So the idea was that if you had one person hearing the case as a first instance, the hearings would take place much quicker. And to be fair, they did. And I think certainly everyone would agree that the waiting lists drastically reduced on the introduction of the WRC.

I suppose there were inconsistencies, however, that built up as to how cases were run. And as a practitioner, that was probably the most frustrating part of it. It was very much dependent on the individual adjudication officer.

So getting back to Zalewski, the High Court, actually the state conceded that there were procedural errors in the actual case itself. And so they conceded that and it didn't need to be quashed, but on the constitutionality piece, the High Court held that the WRC was not involved in the administration of justice. And in those circumstances, it wasn't unconstitutional. And the matter was then appealed to the Supreme Court and the court, and it has to be set by a very narrow majority, decided that the WRC is constitutional. And that was decided in . . . it was four to three majority. So it just narrowly avoided being declared unconstitutional, I suppose.

And what the majority decision was, is that the WRC is involved in the administration of justice but that administration of justice is quite limited. And therefore, it was captured under Article 37, which it permits the exercise of some functions by people and bodies who are not judges or courts under the Constitution.

But the Supreme Court did flag some very relevant concerns that they had which they felt weren't compliant with our Constitution. And the first was the blanket ban on public hearings. The Supreme Court felt there's no justification for that. And that hearings, particularly in the administration of justice, should be in public. And the second aspect was that the facts that evidence was not been taken on oath was problematic because there was no kind of checks and balances there for people to perhaps not give full and true evidence.

So they were the two main issues and concerns that the court had with the WRC in its formation. And I suppose the government, you know, reacted pretty swiftly and announced that amendments would be required to enable the WRC to function in line with the Constitution. Now, those amendments are still be worked upon, and it is hoped that they will be made prior to the summer recess. But we're all still waiting to hear and see what the amendments to the legislation look like.

I guess in the meantime, it's having a very real impact on the WRC itself. The WRC has actually on its own website, published a notification setting out, you know, the measures it's going to take in this interim period, while we're waiting for that legislation to come to the fore. So in the first instance, they have highlighted the fact that all hearings will now be heard in public. And I suppose, just for any listeners out there who maybe have cases in the system that were launched prior to the Supreme Court decision, it includes those claims as well. So I suppose any claim that's currently in the WRC system, will be subject to a public hearing, and the names will be put in the public domain.

So we understand that at the moment, the WRC is publishing a list of cases for hearing. And given the obviously, the protocols at the moment, and the fact that virtual hearings only are taking place, any member of the public can look to join those hearings. It's by way of a link that, you know, it's provided by the WRC. And you can submit your request to join a hearing.

Now, interestingly enough, I just popped on the WRC website prior to our call. And the lists are certainly there. And they're publishing them each Friday. However, at the moment, there are no names published on the list. And I suppose the rationale given by the WRC at this point is that, given that a number of these cases were issued, I suppose, prior to the Supreme Court decision, they are not issuing the names yet, until they get clarification on, you know, I suppose we're in a bit of a limbo period on the legislation at this point. So just to note, if you do go into the WRC, you won't uncover any names as of yet. But that will change, I suspect, in the short term.

Scott: Can I maybe come in there, Antoinette?

Antoinette: Sure.

Scott: You have this hybrid at the minute presumably with the amalgamated the Rights Commissioners and the Equality Tribunal, and EAT, they were trying more to get the Rights Commissioners' style, if you like, the informal style. And nobody complained of a Rights Commissioners being held in private, presumably, because they were dealing with the smaller claims that weren't worth as much. Whereas, you're looking at equality cases and unfair dismissal and this two year salary, more if it's whistleblowing and so on.

But in the WRC, you know, you would find a lot of cases where they might start, and they go to mediation. And, you know, the commissioner would say, or the adjudication officer would say, "Do you want to go and settle this thing?" That's going to be played out in public if it's played out at all. So there will be unintended consequences of the formalisation process and opening it up. At the moment you're going to have those things that are going to be published. And, you know, I don't know, if it's Dunnes Stores or something like that, you know, you used to see those cases quite a bit. You know, that's the ones that the press are going to pick up on. They're going to pick up on the big names, or the big individuals, and those are the ones that are more likely to be published. So it's a bit of an issue when it comes to deciding whether you settle claims or not. Because you now know that your name is going to be in the public domain.

Antoinette: Sure. Just to clarify, Scott, actually, mediation cases will not be held in public nor will industrial relations claims. So it's obviously confined to the employment rights claims of which there are a significant number, clearly. Just to clarify for people that might be tuned in, it won't apply to mediations that are held with the WRC.

Scott: No, I wasn't…

Antoinette: Oh, sorry.

Scott: What happens is, as you come into the room, they start discussing the case. The adjudicator says, "You know what, you might want to go to mediation." They don't all go into mediation straight away. They start off once they start looking at the case and they go off.

Antoinette: No, understood.

The fact that I suppose the names for both sides will be published will be a factor for people. And I suppose up to this point, you know, when you were taking a claim, you knew you're safe in the knowledge, I guess, that the names would be anonymised. Now, look, there were very broad stroke references to the parties involved. But it's certainly an issue and I think the WRC actually addressed that on their notification. And to say if people who have, you know, obviously submitted claims prior to this coming about. You know, if they want to avail of mediation, or you know, they even referenced people withdrawing their claims as a result, that they have provided contact details for them to do so.

So I think it will certainly advise or guide the parties going forward as to what they will do with the case, whether it's the complainant taking it at all in the first place, because they will, you know, their name will be out there in terms of prospective employment, but also, you know, in terms of any publicity, as you mentioned, there will be some headline names there that the press and the media will be keen to sitting on and report upon.

And I suppose that's another throwback to the Employment Appeals Tribunal days where, you know, you would frequently have a member of the press in the room and, you know, reporting on the case. Particularly, I must say when the courts themselves were closer over the summer period, you would always find that there were a number of members of the press in the various Employment Appeals Tribunal hearings.

So it's a very relevant factor for the parties. Now, you know, I suppose the other point to mention is that the Labour Court always published the name. That would have if the matter was appealed to the Labour Courts, the names are put into the public domain at that point. But I think certainly in terms of, you know, commencing proceedings and deciding whether to defend them or not, the fact that if the names are out there is going to be a relevant factor.

Witnesses & quantum

Scott: Okay. There's a question come in here. There are two questions. I'll read them both out. If, for example, a line manager is called to be a witness, will their name be published? Or is it just the name of the company and the complainant? And if a company is basically not defending a claim, but seeking to identify the remuneration required to close the case, can the witness still be called by the complainant? So suppose that second one might not be sorted out yet, if it's going to come to new regulations. Is it? I don't know.

Antoinette: So in terms of assessing the quantum, is that what the question is about? What is the quantum?

Scott: I think it is. Do you still bring forward the witness to argue over the amount of money that there's going to be there? Could you be called as a witness? Maybe bring one of your managers to see whether they did get a bonus or didn't get that kind of thing, presumably.

Antoinette: Well, you know, all . . . anything that is going before the WRC will be heard in public. So whether that is just on a net legal point, or whether it's a full blown hearing where people are cross examined, and people are giving oral evidence. If it is going before the WRC, unless it's a mediation case, or an industrial relations case. And sometimes those kind of bonus questions would come up in an industrial relations and kind of trade dispute basis. But, you know, you should expect that your names will be published as a company in relation to that hearing.

Turning to the issue of witnesses, I don't believe that they will be named. I'm just, again, casting back to the Employment Appeals Tribunal days, the initials perhaps of a witness tended to be provided on any written decisions. So I don't think that witness names will be published. But that remains to be seen, I guess. We still haven't seen any legislation as to what measures the WRC will put in place.

Scott: You certainly see them in the UK cases where most of the time, unless it's a discrimination case, then they'll mention the name of your . . . Manager X, or Y, or whatever happens to be. They tend to have them. One of the other unintended consequences, I suppose, is that when they published the names of the parties, there would be some less scrupulous companies would phone up owners. So people listening here today, I would say, "I see you've got a tribunal claim . . . it's what happens in Northern Ireland. "See you've got a tribunal claim. If you take our services, we can keep your tribunal." And you get that kind of, I would imagine it'll be the same, "Oh, I see you've been to the WRC. Maybe if you take our services."

You'll find some unsolicited calls will come about. But the worrying thing for me is if you're in the UK system, it's very regulated. I mean, there are extensive rules of engagement. Pretty much not just given evidence on oath, but you know, it's, you'd have a witness statement. And that witness statement would be taken as read, and then it would go to cross examination. It's that type of stuff, you know. If you don't challenge something happened on a Tuesday, hardlines. You didn't say it didn't happen on a Tuesday. So it happened on a Tuesday. Very, very legalistic. It's led to . . . I'm not putting down lawyers obviously, but led to almost everyone being represented by lawyers. If you're in Northern Ireland, I don't think there's any trade unions left that use full-time officials to take claims and represent the claimants. They all put them into the solicitors. It's really legalistic. It's scary, you know. And the cases take these days. It's not unusual to see an unfair dismissal or a discrimination claim take a week to 10 days, because everything's written down verbatim. If it goes that way, it gets completely away from what the WRC and the old Rights Commissioners and everything else we're supposed to be.

Antoinette: Yeah, and I suppose, look, it has to be said that when the WRC system started in 2015, there was this idea of, and it's very much been enforced and providing your submissions in advance. Now I know they do provide for an administrative timeframe of 21 days on receipt of the complaint. And that would be really largely for the employer to demonstrate saying in an unfair dismissal case that that the claim was fair. The onus of the proof is on the employer in those circumstances. But where it's involved an equality case, it's required the complainants themselves to set out their full kind of case and the facts and circumstances they're relying upon, together with any legal points that we're looking to rely on.

The same went with the constructive dismissal case. So constructive dismissal and equality requires the complainant to provide the submission, and the unfair dismissal complaints would require the employer. And it has to say . . . it has to be said, I suppose, those submissions are quite detailed, and they do have a legal submission element to them. And that has probably resulted in the WRC becoming quite legalistic, as matters stand. I suppose these new measures are going to add more formality and more, you know, potentially more legal representation in the WRC. So I think, you know, and certainly in terms of commentary out there, the fact that the adjudication officers are not legally qualified, is perhaps being examined, because they are . . . and even currently, they're being required to look at large volumes of data, large volumes of submissions, legal submissions, and make their decision accordingly. So even though the Supreme Court in the decision said that Article 37 required, you know, permitted exercise of that function by people who were not required to be judges are legally qualified. And it will perhaps, you know, flavour how the adjudication office is going forward. Look, we just don't know. But I suppose that's probably another consequence of the measures.

Another aspect of the decision was the idea of the administration of open cross examination, which we obviously conducted the poll on. I suppose the provision of the court was that where there was a serious and direct conflict of interest. And, you know, that will require, you know, the administration of the oath. However, at the moment, there is no provision for that in the legislation. So any of those cases that do require cross examination and evidence to be given under oath, will likely be, will be adjourned. We've been told that, and I suppose from a practical perspective, COVID has obviously brought about significant delays in terms of the WRC hearings themselves. Now, they're virtual hearings, and they're already long delays in that. So just for anybody who's currently in the system, you know, it may result in a case being adjourned further, until such time as the legislation is put in place. It's likely that, you know, in terms of that it will . . . Adjudication officers, I suppose, can make that call once the case was started as well. So it could lead to the situation where everybody's ready to go for the hearing. And then it's adjourned on the day because the adjudication officer decides that there is a serious and direct conflict of interest. So I suppose just to prepare people for that, that could be another consequence of this change to the system.

Scott: Okay, thank you very much, Antoinette. Now we did have questions, a few questions. We've got one in beforehand and it's a bit long, but I think it can be summarised. When is it possible to have a hearing in private going forward under new rules? We've explained that. It's going to be mediation or it's going to be one of the industrial relations one, unless it's there's a very good reason. I think there's something in the draft legislation will come through because even currently, you can have some cases in the court system that are in camera, if you like.

Audio recordings of proceedings

So this question here says, "In the Equality Tribunal investigations, there was been serious shortfall up to now of no verifiable record being kept at all of what happens within the closed hearing, no transcript for it etc." An admission that this writer says this has a very serious repercussions. The Privacy Clause and Equal Status Act has been cited as the prohibitive factor to arranging of audio recording. Given that there is no longer any prohibition on all WRC, says Equality Tribunal, but it's actually equality cases being conducted in public. What steps can now be taken to achieve arranging of audio recording of what transpires within, so thereby an authentic independent record is kept confidentially by the WRC? Or that can be accessed on application by either party in a dispute for purposes of an appeal, or indeed, some kind of judicial review? Should either of those steps be necessary?

So what's your best guess? I suppose, not only are they going to be in public. And the press will be there, and you'll be on oath, and become more formal. But will they also be recorded for whatever purposes. Presumably, that's not going to be ... the recording won't be put on the internet, that would be something that won't be accessible at specific times through certain procedures?

Antoinette: Yeah, look, that's a really good question. I suppose the Zalewski decision has put the emphasis now on WRC hearings being required, I suppose, to be at the same level as the court hearing. So I suppose I can only look to the court system at the moment and see what's in place there to maybe hazard a guess as to what might happen.

And currently, the court system has a digital audio recording system, and in the courtrooms, which, for that very purpose that the questioner set out that if there is a dispute as to the evidence, and that there is, I suppose, a system there that the court has integrity over. As you say, it's not going to be put up on the internet. But there's quite a formal process, I suppose, to adhere to to gain access to the DAR as it's called. That requires you to make a formal application to the court on notice. And the trial judge effectively will hear your application, and will then make a decision as to whether the DAR system and can be, you know, provided to the parties.

And I suppose, from that point of view, it's not that the audio itself is provided, it's a transcript of the audio is then prepared. And the downside, I suppose, is that the requesting party may be liable to pay the transcript costs. So that, you know, that may be something that creeps in here as well. But that is perhaps where the WRC will go. I just don't know, I guess. And at the moment, the WRC have some centres. You know, they're contained within set building. So it's probably going to be easier to do it within those centres. However, a lot of the hearings, as people will know, are heard in, you know, hotel rooms around the country. So I don't know that there will be a kind of a system that will have to have integrity provided in there. I certainly don't think people will be allowed to, you know, record things on their phones and that type of thing. But we'll just have to wait and see again, how closely the new legislation aligns the WRC to the court system.

‘Trolling’ of witnesses

Scott: Okay, I'm going to take one last question, then we'll move on to the masks. I'm going to put these three together here. Given the level of trolls on social media and victimisation that could occur as a result of cases in public, how will this be managed? It could result in a mental health risk, and could they see an increase in personal injury cases. Also, in terms of HR professionals, this could impact on our careers if our names are highlighted in the media. There's more issues about particularly if it's bully and harassment type cases that are there. Is that just a risk that's going to be out there, that those cases are going to be there? You see it and you know, that the court cases at the moment that are there is just something you have to take in mind, that if you're going to defend the case, and you've made a mess of it, or you're accused of making a mess of it as a manager or an HR professional, just make it out there.

Antoinette: Well, I suppose, in the first instance, you're right. I mean, these cases are being held are not obviously employment rights cases, but cases concerning people's rights are being heard in courts, rights for country. And it does depend on the, perhaps the media reporting of it. And all of them are obviously open to the public. And you know, you can't stop somebody coming in, and maybe obtaining the HR manager's name by virtue of them giving you evidence. As I said earlier, I don't believe that the decisions themselves will highlight the person's name. But it probably is a, you know, a risk at that domain. We'll get out there by virtue of people attending the hearings and becoming aware of the parties involved in choosing the witnesses.

I suppose in terms of the trolling and social media aspects, there's still, that says, doesn't mean that people can wholesale comment upon individual people giving evidence, and I suppose there is there kind of defamation and laws that apply to the publication of information about people on various platforms and social media and stuff like that. So I suppose that those laws and rules still apply, you know, to public hearings of WRC cases, in much the same way that they apply to, you know, hearings and cases taking place in public in the civil courts.

Refusal to wear a mask

Scott: Okay, let's move on to masks. A question here. We have an employee who refuses to wear masks and has not set out any medical grounds for doing so. We have contacted the GP and had occupational health involvement, and they have again, not indicated any physical or mental health conditions that would prevent mask wearing. We have done everything we feel we can, but we are now facing a claim under stress, even though the internal grievance process has been completed, and the employee has been demanding money to make this go away. What are the risks to the organisation? And given that our poll showed that, what was it? 87% of the people listening today require people to have masks. This might impact on quite a lot the audience. I would imagine if you get an individual who's refusing and then takes a stress claim. So what are the risks here, really?

Antoinette: Okay, well, I mean, I suppose just a comment that we're seeing a lot of these queries, you know, from our clients in retail and hospitality and various customer facing settings. And it has to be said, I suppose, from both their own employees' perspectives, but also members of the public, as you can imagine, in terms of supermarkets and shopping centres, and that, which is probably only going to increase now that you know, various kind of non-essential retail has opened up.

But I guess the wearing of masks, is a legal requirement, and it is a temporary legal requirement. But I suppose it was brought into place and under a statutory instrument last year. I won't even quote the instrument's name because it's quite long winded, but we’ll call them the 2020 regulations. And I suppose those regulations were brought in because it was deemed necessary from a public health perspective, that it was at . . . the wearing of masks were required in settings where there are a number of, you know, people accumulated.

Now, it has to be said the regulations don't actually apply to people under 13 years of age, where workers in a position to work behind a screen, for example. So we all have been to checkouts that are department stores and the screen is in place, and invariably the employee may not be wearing a mask, or for the worker, they've take all reasonable steps to maintain two meter distance, or indeed the employer that if they're capable of organising premises that there's two meter distances between people.

So I suppose the genesis of the regulations is that the occupier of the premises or the workers and the employees involved in this, would engage on a reasonable basis with members of the public and their own employees to inform them, I suppose, as to the requirements for masks but also to promote compliance.

Now, there are reasonable excuses provided in the regulations. I know your question mentions that there isn't any medical basis for the refusal but certainly there, you know, medical brands or an impairment are one of the kinds of exemptions offered in the regulations as to why somebody shouldn't have to wear masks. And I suppose, you know, going back to your question, if it's the case that somebody doesn't have any medical basis or any basis that they're relying upon as a reasonable excuse under the regulations, then really, it's a health and safety issue.

You know, I would certainly be saying that in so far as stress is concerned, one of the biggest defences to stress in any setting or indeed any personal injury is that you have acted as an employer in compliance with your health and safety requirements, to provide a safe place of work. I suppose that works both ways. The health and safety legislation actually provides that employees themselves have a duty to act reasonably, and not to endanger themselves or others.

So going back to the person that is not wearing the mask, you know, the measures have been actually put in place for their benefit to prevent, you know, the risk and spread of COVID, obviously, and for all of the employees involved. I would certainly say that, you know, in terms of being proactive, people will have carried out their COVID-19 response plans under the return to work safely protocol. So kind of go back to that, go back to your risk assessment. See is there anything, you know, that we have missed, I suppose, in terms of that risk assessments. Is somebody in a position to work two meters away from everybody else so that they're not necessarily required to wear a mask?

And kind of look at the, I suppose, the exceptions provided under the regulations, if it is something that we can, that is permissible for us to do, and we have been able to comply with those regulations whilst at the same time, you know, complying with the return to work safely protocol, I think, you know, that would be the our greatest defence to any claim that might come down the track, because it shows that we have acted in compliance with the new temporary legal requirements regarding masks. But we've also taken measures from a health and safety perspective to provide a safe place of work.

Dealing with mask refusal

Scott: Would those measures include sending the person home? Would it include warning them that if they come into work again they'll be sent home or going through some kind of procedure and dismissing them under health and safety guidance because they just won't accept the rules?

Antoinette: So if our risk assessment determines that we need people to wear a mask, effectively . . . we can't come under any exceptions, well, then it is a health and safety issue and if somebody persists in flouting health and safety rules, I think certainly it is something that we would have to look at from a disciplinary perspective. To be honest, I think we went straight for a gross misconduct dismissal. I think that would be deemed disproportionate as a response. But, you know, again, I suppose once the employer acts reasonably, and you know that's the best defence to any claim that might be made.

So I think if we show like that this person is already referred for occupational health and complied with the grievance and, you know, as I said, maybe go back to your health and safety reqs or your COVID-19 response team and say, you know, what is the situation with masks? Are they a requirement here? We've done all of that. The individual continues to flout then what are effectively health and safety rules. And as I said, it would be reasonable for us to explore that then from a disciplinary perspective.

Obviously, it's a different story if somebody had genuine medical issues and is not in a position to wear the mask, then it becomes, you know, and I suppose we have to be conscious of our equality obligations. Is it something we can reasonably accommodate? Can we have these individuals working from home, perhaps, so that we're not in that space of having to monitor and ensure compliance with the mask wearing. But certainly, from the medical issues point of view, you know, you're back to the kind of rule book in terms of equality and disability and is it something we can reasonably accommodate. And I suppose to remember that reasonable accommodations shouldn't place a disproportionate burden on the employer. So if it's not that we have to comply at all costs. And I think certainly we can make an assessment of that as to what is reasonable accommodation in circumstances with somebody with medical issues.

Scott: Okay, I'm just going to go back to the last subject, then we'll take a question. So we'll extend the webinar for a few minutes longer if that's okay, folks. If you have to go, the recording will be available on the website to subscribers later on. So this is from the WRC, really helpful analysis. Thanks a million to RDJ and Legal Island. The web notice will be updated next week, so keep an eye on the website. The WRC is doing its best to implement the changes required as a result of Supreme Court judgment whilst trying to minimise the impact on the parties and stakeholders. Their advice is try to engage with mediation as early as possible. It's subject to availability so difficult if a solicitor contacts on a Thursday for a hearing on a Tuesday, and asks for mediation on a Monday. So it's unlikely to be possible to facilitate that notice. So I think that backs up your point with a WRC that they're going as quickly as they are, or they can but obviously they're not just going to the legislation.

Medical exemption

Now back to the masks. We've a situation whereby GP has issued a letter to one of our employees to say they are medically exempt from wearing a mask, however, they work in health care setting and our occupational health provider has said that there's no reason why they can't wear a mask. They are currently out on stress leave. What's the best way to deal with this situation? Is it more medical stuff, more medical information?

Antoinette: That's it. I suppose, you've got a conflict of opinion between the two medics involved. Ordinarily in those circumstances you would tend to maybe go to a higher authority perhaps at the level of consultant, but I suppose where the employee is currently out sick at the moment, that's probably resolves that from that perspective.

But in a healthcare setting, I suspect the wearing of masks may not necessarily just be confined to the 2020 regulation, so it's perhaps something that will have to be determined to one way or another. Arguably, you can rely on your own occupational health, particularly where they are aware of the setting itself and they had requirements on the employee groupings as a whole. But it can get very difficult when you have two medics that don't agree with each other and perhaps our occupational health person could reach out to the employees' medical advisor, obviously with their consent, just to see could the issue be resolved between the two of them. It is certainly tricky when you have two conflicting medical reports.

Layoff and redundancy

Scott: Okay. There's number of things coming in on that. We'll maybe have to come back, but I want to deal with this redundancy issue as well. There were changes brought in at the start a lockdown with workers who had been on layoff for a certain period of time looking for redundancy, and that's been taken away. So maybe just cover that and any idea if that's going to disappear or if it's going to continue. So maybe go to that redundancy situation.

Antoinette: Sure. I suppose the position prior to COVID and obviously the emergency measures that were taken in response to COVID was that an employee could claim a redundancy payment, a statutory redundancy payment, if they were on layoff for a short time working, or a combination of both for either a period of 4 consecutive weeks or 6 weeks in a 13-week period. So obviously one of the first concerns that were expressed from employers is that with COVID and lockdown and premises and buildings being closed and people just not being in a position to work, where was that going to leave then from the point of view of this redundancy payment.

So, in terms of the response, from the government responses very early on is obviously dealt with a raft of issues, but one of the issues that changed within the emergency measures legislation was the ability for an employee to effectively force their redundancy where they have been on layoff for short time for those kind of 4 consecutive weeks or 6 weeks within 13, was to disable that ability to do that, I suppose, is probably the best way of putting it, and to temporarily put a block on an employee's ability to do that.

So that has kind of followed the emergency measures legislation right the way along. There were various timelines put on that, and we aren't we do know that it has been extended now up to the 30th of June of this year. But that could potentially be extended further because it has been continuously extended I suppose throughout the course of the pandemic. And I suppose maybe the unintended consequences that we're certainly seeing is that impacted sectors where their employees have largely been out on layoff for a short time for the past 12 to 15 months. There's certainly a few employees have been coming to them to say, "I secured a new job. So can I, you know, I want to claim my redundancy or can you make me redundant?"

I suppose the old system, they would have been able to do that and enforce their redundancy. As a result, but I suppose with the emergency measures that are in place at the moment, that is, you know, employees are not able to do that, or claim a redundancy payment. And largely, if they decide to take up a new job, they'll have resigned their original job and lose obviously in any service that they had from a reputable service perspective when they do so.

Short time working and redundancy

Scott: Yeah, there's a question here just and this will be the last one. If an employee is on temporary layoff, and we can return the employee to a business but on a two to three day week rather than five, are there any risks associated with this? And can the employer refuse to come back and try to claim redundancy?

Antoinette: So again, for as long as these measures, these emergency measures are in place, the employer in question will be able to do that, and they will be able to bring their employee back on short time and not run the risk of then forcing a redundancy situation. However, you know, as I said, it will depend on how long those measures last. And there they are lasting until the 30th of June. They could potentially be extended beyond that. But I suppose, there is a statutory ability for employers to place their staff on temporary layoff for a short time and I suppose the legislation was always intended for it to be temporary, but this pandemic has obviously made certain employees layoff place quite permanent in many respects. But for the moment, they're not going to be able to enforce that redundancy and won't be able to do so until such time as those emergency measures are reversed effectively.

Scott: Okay, thank you so much to Antoinette Vahey and to everyone listening today. You can see the contact details are there from RDJ. There will be another couple of sessions this year, and the audience with, so if you any questions, burning questions, send them in and we'll deal with them on the other sessions. That's me. Don't forget, "Right to Disconnect." We'll send you details of that €10 per staff member, if you're looking to get people to do eLearning on that.

And that's about it really. Our next webinar is with The HR Suite with Caroline Reidy as she's now known. No longer McEnery. She's now Caroline Reidy and we'll be dealing with absence management. Then there's another one with Bright Horizons, we'll deal with flexible family friendly working. What does it look like? They do a lot of work with people who are parents and are trying to balance working with being a parent homeschooling, all that kind of thing. We've got the summer holidays coming soon. It's going to be fantastic. So thank you, Antoinette. We'll see you all later, folks, and maybe see you next week at one of the events or the ones coming up shortly. Okay, take care. Bye, everyone.

Antoinette: Thank you, Scott. Bye-bye now.

Scott: Bye.

      

This article is correct at 19/05/2021
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.

Antoinette Vahey
Ronan Daly Jermyn

The main content of this article was provided by Antoinette Vahey. Contact telephone number is 91 895366 or email antoinette.vahey@rdj.ie

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