The current lockdown has led many businesses in Northern Ireland to embrace remote working and more flexible working patterns. Although there are many benefits to this, home working can undoubtedly lead to increased stress and anxiety. Indeed, according to a recent survey in the UK, the majority are finding home working stressful. Those surveyed usually worked in an office, but were now working at home because of coronavirus. The results showed 54% of people felt more stressed working from home, compared with 18% who felt less stressed. A further 52% felt more anxious working from home compared with 14% who felt less. 

Duty of Care

Employers in Northern Ireland have a duty to take reasonable care to provide employees with a safe place of work, safe tools and equipment. 

In the context of COVID 19, it will be important for an employer to actively think about what reasonable care looks like with regards to employees who are working remotely. 

What amounts to reasonable care will depend upon the employee’s particular circumstances. Employers should consider areas of particular challenge for each of their employees. This may include things like equipment required for homeworking, access to wifi, childcare provision and caring responsibilities. 

Employers must take sufficient steps so they can demonstrate to a court or tribunal that it did all that it reasonably could to fulfil its statutory duties. In discharging such obligations the employer is not under an absolute duty but instead is held to a standard of reasonableness.

The employee must also co-operate with their employer so far as is necessary to enable the employer to comply with its health and safety obligations. 

Managing underlying conditions 

If an employer is aware that an employee has a mental or physical underlying condition, this should be borne in mind when considering what is reasonable.

With regards to these employees, employers should ask themselves the following:

1. Is the employee now more likely to suffer harm through home working? 
2. What reasonable steps can be taken to reduce the risk of harm? 

Employers should be aware that they may be responsible for aggravating any underlying condition due to the way that they manage home working arrangements. 

If an employee has an underlying condition, they should ensure that their employer is aware of this so that appropriate action can be taken.

Performance issues

Employers should be realistic about what any employee can deliver while working from home in the current circumstances. However, as lockdown continues, employers may find that they experience sustained issues with staff performance.

If this happens, they may wish to confront employees about their levels of performance.

In the current circumstances, this can be very difficult to do, particularly if it has to be done virtually. Any such discussions should be handled delicately. In the first instance, consideration should be given to an informal conversation with the employee in question. Moving immediately to performance management and/or disciplinary is likely to be considered unreasonable in the circumstances. 

Practical steps 

Employers could consider the following practical steps:

1. Consider introduction of well being strategy 
2. Undertake assessment of risk to current staff 
3. Communicate regularly with staff 
4. Send update emails outlining company strategy for handing COVID 19 in line with government advice
5. Remind employees of their own obligations to make employer aware of any underlying conditions/disability so this can be factored into home working strategy
6. Establish company well being initiative 

HSENI has issued a Talking Toolkit which may be of assistance to employers at this time. See https://www.hseni.gov.uk/publications/talking-toolkit-preventing-work-related-stress for further information. 

In normal times, health & safety provisions are rarely pleaded in employment claim forms. This will undoubtedly change in the aftermath of COVID-19. Today, we expect the Northern Ireland Executive to release their plan for lifting lockdown. Before business resumes and further workplaces reopen, employers should consider what health and safety protections can be implemented within their working environments. 

Key legislative provisions 

The key health and safety provisions within an employment context in Northern Ireland are as follows: 

Employment Rights (Northern Ireland) Order

Article 68            

68.—(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— 

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

Article 132 

132.—(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— 

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The equivalent provisions in England are s44 and s100 of the Employment Rights Act. 

NI Health and safety cases

O’Hagan v Ballymacconnell Private Nursing Home Limited [2014] NIIT 935/13IT

In Northern Ireland, there was a successful health & safety dismissal claim in 2014 in the case of Michael O’Hagan v Ballymacconnell Private Nursing Home Limited [2014] NIIT 935/13IT. The Claimant was an employee within a nursing home who raised a number of concerns about inadequate staffing provision and corresponding health and safety risks.

The dismissal letter provided: 

“As you have been employed with us for less than 12 months, we have no legal obligation to follow statutory procedures and therefore your employment will be terminated from today..”

The letter continued: 

“We will be informing staff and the RQIA that you have been dismissed from your position on the grounds of performance and that there has been no issues relating to misconduct surrounding your dismissal. We have not provided you with the right to appeal this decision as you have less than one year’s service with the company"

The Claimant contended that one of the reasons he was dismissed was because he raised health and safety concerns. The Tribunal found that the dismissal was automatically unfair under Article 132(1) and awarded the Claimant over £17,000.

O’Callaghan v Western Health and Social Care Trust [2014] NICA 19

This is also an interesting Northern Ireland case involving the application of Article 132. 

The appellant was employed as a speech and language therapist from 1999 until 2011 when she was dismissed for failing to return to work, having been on sick leave. In 2004, she made a complaint about bullying by a co-employee. An investigation took place and the investigation report confirmed that bullying and harassment had occurred. The co-employee was accordingly dismissed.

As a consequence of the bullying, the appellant left work on sick leave. 

In 2010, the Trust wrote to the appellant proposing that she should return to work. The appellant replied that she would not be able to return to work until she was satisfied that the workplace was safe. After her failure to return to work, the appellant attended a meeting to consider the possible termination of her employment. She was subsequently informed that her employment had been terminated since there was no prospect of her returning to work for the Trust in the position identified or any other post in the foreseeable future. 

The appellant genuinely believed that a return to work would place her in circumstances of serious and imminent danger but that subjective belief was not decisive and such belief had to be reasonable. A subjectively-held belief may be reasonable even though it ultimately turns out to have been wrong. 

The appellant genuinely believed that a return to work would place her in circumstances of serious and imminent danger but that subjective belief was not decisive and such belief had to be reasonable. A subjectively-held belief may be reasonable even though it ultimately turns out to have been wrong. As the Court of Appeal emphasised: 

[22] It is important to keep the specific statutory wording clearly in mind. It was accepted by the tribunal that the appellant did believe that her return to work would result in her encountering circumstances of serious and imminent danger and the fundamental question was whether it was reasonable to hold such a belief having regard to the objective facts. A subjectively held belief may be reasonable even though that belief, ultimately, turns out to have been wrong—see Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] IRLR 346, [2007] ICR 1026.

The appellant identified two principle bases for her belief: that the Trust refused to carry out separate formal investigations of two individuals in accordance with their Bullying and Harassment Policy; and that the Trust did not complete a risk assessment exercise before inviting her to return to work. However, the Tribunal found that there was no evidence that separate formal investigations were essential or that the chosen course of action was unreasonable in the circumstances. 

On the findings of fact made by the tribunal, there was not a reasonably objective basis for a belief that a return to work in October 2010 would have led to the appellant encountering circumstances of serious and imminent danger that she would have been unable to avert. 

Health & Safety COVID-19 cases 

Over the next few months, employers may find that some of their employees refuse to return to the workplace on the basis of the serious and imminent risk posed by coronavirus. It is possible that such employees could attempt to rely upon the health and safety provisions outlined above to argue that they should not be dismissed (Article 132) or subject to detriment (Article 68) for their refusal to return to the workplace while the pandemic continues. Whether such a claim would be successful would depend upon the reasonableness of the employee’s belief and the overall reasonableness of such action (which could depend upon factors such as the context of the working environment & the government advice at that time).  

Practical Advice 

Before workplaces reopen, employers should: 

·      Review health and safety policies 

·      Conduct risk assessment to spot potential hazards & reduce possible risks 

·      Consider provision of PPE & other protective mechanisms 

·    Audit workplace hygiene & cleaning practices 

·      Think about social distancing within working environment  

·      Consult employees who have been shielding/consider adjustments where necessary 

·      Develop strategy for managing employees who experience symptoms of COVID-19 

·      Continue to facilitate remote working where possible 

Further guidance on workplace safety and social distancing has recently been published on the NI Business Info website.  

One interesting provision that lawyers in Northern Ireland should be paying attention to is Article 163 of The Employment Rights (NI) Order 1996. In certain circumstances, this provision allows dismissed employees to make an application to the Industrial Tribunal in Northern Ireland to continue their contract of employment pending determination of their case. Although this provision has rarely been pleaded in employment cases to date, this may change due to the situation with COVID 19.

Circumstances where interim relief can be sought 

An application for interim relief can only be made in specific circumstances. 

As with claims for unfair dismissal, applications under Article 163 may only be made by employees. It is however noteworthy that no qualification period of employment which must be served before an interim relief application can be made.

With respect to COVID 19, applications for interim relief may arise where an employee is dismissed for: 

• Carrying out activities in connection with preventing/reducing risks to health and safety at work- Art 132(1)(a) & (b)
• Making a protected disclosure- Art 134A
• Trade union membership or activities- Art 136(1)

Procedure 

Applications for interim relief can be dealt with by way of preliminary hearing by an Employment Judge sitting alone. 

Key things to note about Article 163 applications are as follows: 

• An application for interim relief must be made within 7 days of the effective date of termination 
• A claimant does not have to comply with the requirement for early conciliation where a claim for unfair dismissal is accompanied by a claim for interim relief
• The Tribunal must determine the application “as soon as practicable after receiving the application” 
•  The Tribunal must give the employer notice of the hearing and a copy of the application at least 7 days before 
• Postponement of an interim relief hearing is only possible in special circumstances 

Legal Test 

The relevant test for the Tribunal to apply is whether it appears to the Tribunal that it is likely that on determining the complaint to which the application relates that it will find that the Claimant has been unfairly dismissed for the asserted qualifying reason. The burden of proof is on the employee. 

Successful applications

If the Claimant is successful with their application for interim relief, Article 164 of the Employment Rights (NI) Order 1996 provides that the Tribunal must ask the employer (if present) whether they are willing to: 

Reinstate the employee (that is, to treat him in all respects as if he had not been dismissed) 

OR

Re-engage the employee in another job on terms and conditions not less favourable than those which would have been applicable if they had not been dismissed

If the employer fails to attend before the Tribunal or states that they are unwilling to either reinstate or re-engage the employee, the Tribunal must make an order for the continuation of the employee’s contract of employment. 

Such an order will preserve pay, other benefits and continuity of employment. 

If the Claimant ultimately loses their case at final hearing, they will not be required to reimburse their employer any sum paid under a Continuation Order. 

Practicalities

In considering whether to bring an application for interim relief, the following questions should be considered: 

·      Is the Claimant an employee? 

·      Is the Claimant alleging unfair dismissal? If so, does the Claimant rely upon one of the relevant grounds in Article 163? 

·      Is the Claimant likely to succeed at the final hearing of the matter? 

·      What supporting documentation is available? 

Despite the fact that Killymeal House is currently closed, the most recent Presidential Guidance provides that all proceedings before the Tribunals in Northern Ireland. have been postponed and will not be heard before the 1st July 2020 except where an Employment Judge deems the matter urgent. 

Recent guidance from the Employment Tribunals in GB provides that preliminary hearings involving applications for interim relief will be prioritised. 

As a result, it may very well be the case that an application for interim relief could be deemed urgent in Northern Ireland. If this proves to be the case, it may be possible to request an urgent preliminary hearing via teleconference to enable such an application to be made virtually.   

• This case was referred to the European Court of Justice (ECJ) by the Italian Supreme Court
• A senior lawyer at an Italian law firm made remarks to the effect that he would not wish to employ or work with LGBTI persons in his law firm during a radio interview.
• At the time that the comments were made, the firm was not recruiting nor did not receive any complaints.
• An association for LGBTI lawyers brought a claim of unlawful discrimination under the Equal Treatment Framework Directive 2000/78.
• Even though the law firm were not actively recruiting at the time that the remarks were made, the ECJ found that the status of the person making the remarks and the capacity in which they were made, were such that the person was a potential employer or was capable of exerting a decisive influence on recruitment policy or perceived recruitment decisions. Such remarks would be capable of hindering access to employment and might discourage persons belonging to the protected group from applying for employment.