Legal action ‘very difficult’ for staff who fall sick in the office

This article was first published by the Irish Times on Saturday, 4 September.

Many of the State’s largest employers have said they plan to demand staff return to the office for at least part of the working week, while an employment law expert has warned it will be “very difficult” for employees who get sick to bring legal actions.

The Cabinet this week approved plans for non-essential workers to return to offices from September 20th. Almost all remaining restrictions will be lifted on October 22nd, subject to 90 per cent of adults being fully vaccinated, and the incidence rate of the virus being stable.

Duncan Inverarity, partner at A&L Goodbody and head of its employment law group, said the Government’s current “work safely protocol” is “not fit for purpose”, although it is expected to be updated in the coming weeks.

“As we sit here today, the protocol that applies is the one from May,” he said. “Quite obviously that was a completely different situation to the one we are in now. Very few people were vaccinated at that time.

“So the work safely protocol that applies is just not fit for purpose. The Government has said it is going to revisit it. The more notice people have, the better. It simply has to take into account the changes that are happening in October.”

Mr Inverarity said the gap between the dates for the return to the office and the lifting of almost all restrictions would likely lead employers to “delay a return until there is more clarity with respect to protocols like physical distancing in the office”.

He also said it would be difficult for employees to bring legal actions should they contract Covid-19 while at work. “Employers are obliged to create and maintain a safe and healthy work environment,” he said. “That’s an absolute requirement.

“An employee will have to establish that they contracted it at work as opposed to on public transport on the way to work, or at a dinner party on Saturday night, and that will be quite difficult. The employer’s defence will be that they put every measure they could in place.”

Safe return

Meanwhile, many of the State’s largest employers are actively planning for the return of staff following this week’s news. In the case of professional services firm PwC, a spokeswoman said it would be adopting “a gradual and safe return” to the workplace.

“We are asking our people to spend one day in the office by the end of September as we gradually and safely move to our hybrid model of two to three days on average per week in the office,” she said.

Furthermore, office attendance will not be limited to certain roles or tasks. “We are encouraging everyone to come to the office for a specific purpose at least one day by the end of September,” she said.

“We will prioritise opportunities for a return to the office for our most recent two graduate intakes, and recent experienced hires who have had little opportunity to meet with their teams face to face.”

Rival professional services firms Grant Thornton kept its offices open throughout the pandemic, but operated at a reduced capacity.

Fully reopen

Following this week’s announcement, it said it will fully reopen its offices to facilitate a full return of staff from October 4th. However, a spokeswoman said it will be operating a hybrid model.

“If the pandemic proved one thing, it was we can successfully work from any location,” she said. “However we are conscious that what is vital for a happy workplace and excellent client service, is collaboration and working as a team.

“We will be adopting a flexible way of working for multiple reasons; to ensure we maintain our firm values and culture, maintain a consistent level of client service, facilitate the learning and development of our people, all whilst maintaining a good work life balance.”

She said the number of days employees will be expected to attend the office “won’t be prescriptive”.

“The key to the success of the model will be flexibility, as client needs vary and the type of work can change from job to job,” she said. “Whilst people won’t be returning to the office five days a week, each client engagement will bring with it a different requirement.”

However, like PwC, she confirmed that all types of staff members will be expected to comply. “Office attendance is for all service lines and operational support departments,” she said.

Seamus Hand, managing partner of KPMG in Ireland, said this week’s Government announcement “provides welcome clarity on getting back to the office”, and that the firm would bring staff back from early October.

“Most of our employees want to come back to the office at least part of the time while the benefits of greater flexibility are also apparent in attracting and retaining talent,” he said.

Hybrid model

KPMG plans to run “a series of pilots in the months ahead” to establish how best a hybrid model of working will operate best for the business and its clients.

“We’ll be welcoming our people back to the office safely from early October. We’ve invested heavily in technology to facilitate collaboration and learning in a hybrid environment and we’re really looking forward to a new phase in our future.”

Tech group LinkedIn has not finalised a formal reopening date for its Dublin office yet and is in the process of engaging with the Government on its proposed guidelines to ensure it has all measures in place.

However, it said it will “embrace flexibility with both hybrid and remote roles” when the time comes. “We trust each other to do our best work where it works best for us and our teams,” said a spokesman.

“Rather than take a one-size-fits-all approach, we have put a model in place that recognises that the right formula for how we work best, differs person-by-person, and team-by-team.

Twitter continues to have all its employees work from home, and has not set a date for when employees can return.

“We think that we will see many people opting to come into the office some of the time, as lots of our staff miss seeing each other in person. Other factors which we believe will influence people’s choices include their life and career stage.

“For example, staff working in shared accommodation may prefer to come into the office as it offers a more suitable work environment. In contrast, new dads may prefer to work from home more often to be available for their family.”

Twitter continues to have all its employees work from home, and has not set a date for when employees can return. Once a decision has been made on that, it will be a gradual, office-by-office, return, and at a reduced capacity to start.

The company told employees early last year that if they are in a role and situation that allows them to work from home, they can continue to do so indefinitely if they wish.

However, Twitter is expecting most of its staff to adopt a mixed or hybrid model. In fact, many of its employees were adopting this approach before the onset of the Covid-19 pandemic.

Staff flexibility

Separately, Google said it would extend its voluntary return-to-office policy through to January 10th to give more staff flexibility and choice. A spokesman said staff would “move to a hybrid work week” where most spend about three days in the office.

It’s a similar story at jobs website Indeed where its 1,000 Dublin-based staff are not required to return to the office before January. Even then, most staff will be eligible to choose to work in a hybrid or fully remote model if they wish.

“We are so proud of our employees for how they’ve adjusted to remote work during these uncertain times,” said a spokesman.

“While remote work is not ideal for everyone, what we’ve learned is that our employees can be equally productive working at home, and that flexible work options give us a better quality of life.

“After considerable due diligence, including reviewing every role, we have landed on the following categories for how we will work in the future: completely remote, hybrid work from home/work from the office, and full time in the office.

“Employees will be notified of which category their role is in, and will choose how they want to work. The vast majority of employees will qualify for hybrid work or fully remote.”

For more information, please contact Duncan Inverarity, Partner or any member of ALG's Employment Law team.

Date published: 6 September 2021