Employment law Concerns – Covid-19 Pandemic
There are numerous employment law concerns arising from the ever-evolving outbreak of Covid-19. Following the national closure of schools and childcare facilities and the Government’s advice regarding the closure of pubs and bars in an effort to delay the Covid-19 outbreak, hundreds of thousands of employees in Ireland have been laid off to date. While the Government is encouraging employers to implement flexible working arrangements, including facilitating employees to work from home, this is not an option for all types of employments. A significant number of employers nationally simply cannot maintain business as usual and are forced consider temporary lay-off or short-time working options.
What is “Lay-off” and “Short time”?
“Lay-off” occurs when an employer temporarily suspends an employee’s employment, without pay, because there is no work available for the employee.
“Short time” is when an employer temporarily has less work available for an employee than is normal and reduces the employee’s earnings/hours to less than half the normal weekly earnings/hours, respectively.
For “Lay-off” and “Short time”, the employer is obliged to notify the employee of the “Lay-off”/“Short time”. Also, the employer must reasonably believe that the situation will not be permanent and must notify employees that the measure is temporary. There is no minimum legislative notice period to be given by employers. As the employer’s reasonable belief as to the temporary nature of the “Lay-off”/“Short time” is construed in accordance with the prevailing circumstances when the employer’s decision was made, it would seem (though it has not yet been tested) that the COVID-19 pandemic would likely justify a very short notice period.
Selection of employees for “Lay-off”/“Short time”
Employers can select employees for “Lay-off”/“Short time” if it is provided for in in the employee’s contract of employment or is a custom or practice in the workplace. If it is not a term of the employee’s contract of employment or if is not a custom or practice, the employer should not do so without the employee’s agreement. Employees should be aware that if they do agree to “Lay-off”/“Short time”, they may be made redundant by their employer.
When employers are selecting employees for “Lay-off”/“Short time”, employers should be careful to ensure the selection criteria utilised does not constitute discrimination on any of the nine grounds prohibited under the Employment Equality Acts.
Employers should use the same standard selection criteria as for redundancy, when selecting employees for “Lay-off”/“Short time”, for example, last in first out (LIFO).
“Lay-off”/“Short time” and Redundancy
If “Lay-off”/“Short time” continues for four consecutive weeks or more (or for an aggregate duration of six weeks in a 13 week period), an employee can give their employer written notice of their intention to claim redundancy under the Redundancy Payments legislation, on the expiry of the period or not later than four weeks after the end of the period of “Lay-off”/“Short time”. Unless the employer gives counter notice to the employee, within seven days of the written notice of the employee, the employee may be entitled to a redundancy payment (provided that the employee in fact qualifies for redundancy). If an employee chooses this avenue, the employee is considered to have left their job voluntarily and therefore loses their right to notice under the Minimum Notice legislation.
An employer can give counter notice to the employee, within seven days of the written notice of the employee, informing the employee that there will be a commencement of work not later than four weeks of the date of receipt of the employee’s notice, of continuous employment for a period of not less than 13 weeks’ without “Lay-off”/“Short time”. Given the unprecedented nature of the COVID-19 virus and the risk as expressed in some scientific circles that it may hit in further waves, it may be difficult for employers to give this assurance to employees.
|If you have any specific queries or require advice/further information in relation to the above and/or the impact of the Covid-19 virus, please contact Dervla Beirne, Solicitor, Keating Connolly Sellors, Solicitors;- [email protected]