Aug 8, 2021
 in 
Tips & Advice

Irish Employment Law Update v1.4: Vaccination & Return to Workplace

 By 
Chris W. Chan BL
 • 
5 Mins

Since the introduction of Covid-19 vaccines by the Irish government not too long ago, vaccination has, unavoidably, become the centre of all discussions and debates across the country.

In this article, I worked closely with Richard Grogan Solicitor, a leading Employment Lawyer in Ireland, to consolidate the latest discussion and development of employment law in Ireland.

Richard Grogan Solicitor, view Richard's full profile here.

As Richard would say: That’s the law, and that’s the fact.

Wrong Opinions by Some Employers: What NOT to do as an Employer.

The following opinions by some employers are ALL WRONG and not just wrong – they are TOTALLY WRONG.

  1. That regardless of where an employee travels, on return, they must self-isolate for 14 days;
  2. That the self-isolation can be holidays;
  3. That if the employer insists on self-isolation but not as holidays, it is unpaid;
  4. That an employer can insist on evidence of vaccination (separate issue with health professionals);
  5. That an employer can direct that staff do not leave the workplace during breaks (exceptions very limited under Organisation of Working Time Act)
  6. That an employee who must stay out of the workplace because a housemate is a close contact cannot return to the workplace themselves without a negative PCR even when housemate tested negative;
  7. That it is Government Policy that only vaccinated employees may return to the workplace (not currently - separate issue with HSE);
  8. That due to business pressures, an employer can reduce wages/salaries without written consent;
  9. That an employer can insist on a company app being installed on personal mobile phones.

These are just some of the weird, wonderful, and TOTALLY WRONG assumptions some employers believe apply.

All of the above have landed on Richard’s office from either employers or employees.

Smaller employers are not to be blamed as the availability of information is limited.

Questionable Acts By Some Employers: How Employers May Be Sued.

In reality, some of these acts by employers are out of frustration, some out of ignorance of the law, and some out of genuine concern for other employees. However, whatever the reason, all create potential litigation. The issues coming up are:

  1. Some saying only vaccinated employees can return in September;
  2. Requirements to produce evidence of vaccination;
  3. Requirements for employees to self-isolate after returning from abroad even where no legal requirements for employees to do so;
  4. Employers wanting to know where employees are going on holidays and, in some cases saying foreign holidays are not allowed;
  5. Employers requiring Antigen testing to enter a workplace where records retained;
  6. Segregation of vaccinated and non-vaccinated employees.
Inside of the Supreme Court of Ireland.

Currently, all of these create the potential for claims by employees. These are not just claims to the Workplace Relations Commission but also claims to the Circuit Court or complaints to the Data Protection Commission for breach of GDPR Regulations.

As it is, some businesses are simply taking the risk that they will not be sued or believe that any claims can be defended. That is a dangerous approach for a business to take, especially where the “no jab no return to the workplace” is their policy.

What is needed is unambiguous legislation. The announcement by the Taoiseach that vaccination is not necessary to return to workplaces runs counter to what the HSE is doing. Probably he meant to nuance the statement, but with businesses struggling with the 2-metre rule, clear guidance is needed to avoid a litigation avalanche.

Returning to the Workplace & Remote Working: The Challenges for Employers

While many employees will be delighted to be back in the physical workplace, many will not be.

As we head towards September and the proposed return to the workplace, there are significant legal, Health and Safety and GDPR issues. Currently, the law on this is as clear as mud as how the return to workplaces and the right to request remote working shall operate.

  1. We have yet to see the proposed legislation on the Right to Request Remote Working. How it will work in the absence of agreement is still uncertain. Will the Workplace Relations Commission have the resources to address disputes, particularly over the suitability of home workplaces, if there are Health and Safety or GDPR compliance issues raised? Currently, an employer is responsible for both. If the WRC decide an employee can work remotely despite an employer objection on either of these grounds, will the employer still be responsible?
  2. From a Health and Safety point, are we heading for socially distancing in the workplace without vaccination?
  3. Will employers be allowed to request evidence of vaccination to reduce Social Distancing? Currently, it appears employers cannot.
  4. How Will the Return-to-Work Protocol apply going forward if employers cannot ask about vaccination?
  5. How will employers deal with employees who do not want to be vaccinated and equally employees who do not want to be in close proximity to non-vaccinated employees?
  6. There are significant concerns over privacy rights around GDPR as regards information on vaccination being identified to employees.
  7. How will employers deal with the Health and Safety issues around having a workplace with both vaccinated and non-vaccinated employees? No guidance here as yet as regards any change from the current model, which does not facilitate a significant return to workplaces.

There is a strong argument that unambiguous legislation and guidelines are required sooner rather than later to allow businesses to know what they can and cannot do and equally that employees know where they stand and their rights.

We have been sleeping walking towards reopening on the assumption that all employees will be vaccinated and that the incidents of infection will have fallen to almost non-existent levels. Neither of these has happened. Therefore, clear legislative rules are going to be needed. If not, there will be a legal mess with litigation flying. Currently, matters as to how businesses reopen is as clear as mud for both employers and employees, and that is unfair to both.

Your company policies are not laws, and they must be lawful - That’s the law & that’s the fact.

To summarise this article, as of today, by law, your employer CANNOT:

  • Request you to be vaccinated before returning to the workplace (separate issue with health professionals).
  • Request you to produce evidence of vaccination for social distance (separate issue with health professionals).
  • Reduce your wages/salaries without your written consent due to business pressures.
  • Request you to be in self-isolation for 14 days regardless of where you travelled.
  • Request you to use your holiday for the self-isolation.
  • Request you to be in self-isolation unpaid.
  • Request you not to leave your workplace during breaks.

If you require further information, please get in touch with Richard Grogan & Associates here.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

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Disclaimer: Any views and/or opinions expressed in this post by individual authors or contributors are their personal views and/or opinions and do not necessarily reflect the views and/or opinions of Lawyered.

Published by
Chris W. Chan BL
Barrister-at-Law

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