Employees who refuse to work with unvaccinated colleagues on their return to the office could face disciplinary action and even be sacked, an employment law expert has said.
Barrister Katherine McVeigh, addressing an ISME seminar for employers on the return to the workplace, said there are no grounds for enquiries about the vaccination status of staff, and no grounds for refusing to work with unvaccinated colleagues.
“If an employee says they won’t work with another because they are not vaccinated, it actually becomes a disciplinary action against that employee because they are the one refusing to do the work,” she told the seminar, organised by the body which represents small to medium-sized firms.
“You give them a verbal warning, two written warnings, and then you move to dismiss.
“If an unfair dismissal claim is brought, you would say that the Government guidance is that you can’t force employees to get vaccinated, and this employee refused to carry out her work.
“If the employer is saying the workplace is safe and has done all the risk assessments, then you have to go back into work.”
Ms McVeigh said if the Government is not mandating something, it is “very difficult” for employers to mandate it. “Vaccination isn’t mandated like in other countries,” she said. “It’s someone’s own choice and nothing really to do with the employer.
“That applies to masks as well. If you are departing from Government advice, you would want to have a very good reason in a challenge to the courts.”
Place of work
Ms McVeigh also said that an employer “can absolutely decline” a request from staff to work from home. “They don’t need a reason,” she said. “If your contract says your place of employment is Dublin 2, or some office in Meath, that is your place of work.
“You are absolutely entitled to get employees back into the workplace. Covid-19 was an exceptional period. If an employee says, ‘I am demanding to stay at home’, my answer to that would be: ‘Tough – this is your place of work and I need you back in here’.”
Ms McVeigh said the “13 grounds to turn down requests” that have been cited “are only samples for employers”.
“You can use any reason whatsoever,” she said. “Anything that is ‘business grounds’ – that is the term that is in the proposed Bill.”
For companies implementing a remote working policy, Ms McVeigh said it was “crucial” they ensure employees are taking breaks, and that they take records of them.
"We're not seeing the fallout yet in the Workplace Relations Commission (WRC) of employees working at home and claiming they didn't get their rest breaks, but I am certain we are going to see it in the next few months," she said.
“Be really careful. Record someone’s breaks at home. Tell them they have to take them from 1-2pm and record that.”
Ms McVeigh added that, in general, the courts will not accept the pandemic as grounds for unfair treatment of staff.
“The courts have said the Covid-19 pandemic does not mean there is any reduction in the requirement to apply proper and fair procedures in respect of decisions affecting employees,” she said.
"That sums up how the WRC and the Labour Court are dealing with cases. If you go in and say 'I made that person redundant' or 'I had to close that shop', the same procedures still apply. It doesn't matter about Covid-19. There is no respite.
“A pandemic is not an excuse for redundancy selection. You have to identify the financial reasons and go into the same amount of detail as before.”