On the 22nd July 2020, as part of the Roadmap to Reopening Ireland, the “Green List” was issued by the Government, designating certain countries as permissible to those domiciled in the Republic of Ireland to travel abroad to, without the need of having to quarantine for a 14-days upon their return [“Restricted Period”].
As it stands the Governments advice when traveling to these countries is to ensure “normal precautions” are adhered too. However, in reality, those returning from a location on the Green List are not required to restrict their movements.
Click here for the Green List. This is reviewed fortnightly by the Government.
It is recommended that employers take account of the foregoing list when receiving and approving requests for annual leave from employees electing to travel abroad.
Can annual leave be refused on the basis of the employee traveling to a country on the Green List?
Annual leave is governed by the Organisation of Working Time Act 1997 (as amended) [“1997 Act”]. As per Section 20 of the 1997 Act, an employer reserves the right to determine when an employee may avail of their annual leave, whilst having regard to the requirements and needs of the company. Equally an employer when determining whether to approve annual leave must have regard to the following factors:
- Need of the employee to reconcile work and any family responsibilities
- The opportunities for rest and recreation available to the employee.
Whilst employers should at all times ensure compliance with Government guidelines to avoid non-essential travel abroad, they do not have the right to refuse annual leave solely on the basis of traveling to a Green List country.
In the event that an employee wishes to attend a country on the Green List, and due to organisational reasons the employer requires them to remain in work, they must ensure that the employee is notified of this decision no less than 30 days from the planned date of leave[1]. In support of this view, it is imperative that employers are able to demonstrate these organisational reasons to the employee when issuing the notice.
Although an employer is not prohibited from requiring employees to quarantine upon their return from Green List countries, they should refrain from placing said employee on lay-off and/or unpaid leave so as to avoid the risk of same being contested before the Workplace Relations Commission [“WRC”]. See explanation on liability below.
Can annual leave be refused on the basis of an employee traveling to a foreign country not on the Green List?
Prior to the Green Lists announcement on the 22nd July, it was the Governments recommendation that movement of those returning from said travel be restricted by way of a 14-day quarantine immediately following same.
Furthermore, the Department of Public Expenditure and Reform issued guidance stating that all civil and public service employees who travel abroad for non-essential trips would be required to use additional annual leave or pre-approved unpaid leave for the 14 days period.
As such, there is scope of an employer to impose such on their employees in circumstances where an employee has elected to travel against Government advice and is unable to work remotely. However this should be subject to a number of conditions.
As employees will be unable to attend work during the Restricted Period, employers will be faced with the reality that said employees may be absent for a period anywhere between 21 and 28 days. As a result, this may have detrimental effects to the operations of certain businesses, particularly with shift-based work. In that regard, employers would be in a strong position to refuse such requests.
As a reminder, employers should always have regard to the number of annual leave days the requesting employee has yet to take. In circumstances where an employer receives competing requests, reliance should be placed on the operational needs of the business, to prefer the employee with a greater number of days remaining.
Do employees have an entitlement to work remotely?
Whilst this depends on the nature of the work involved and whether an employer can facilitate such a request, there is no mandatory guideline that mandates this accommodation. Rather the Government have urged employees to continue working from home, where possible.
Notwithstanding this position, in the event that an employee has an underlying condition which places them at “high risk”, the question then becomes, does an employer have obligation to accommodate the employee to work remotely?
In short, the answer is yes. As under the Employment Equality Acts 1998-2018 [“EEA”], specifically Section 16 thereunder, an employer is required to ensure that employees subject to disabilities, are required to implement conditions that facilitates the employee to discharge their contractual duties. As such, employers are expected to take “appropriate measures”. The only exception being, if such measures impose a financially disproportionate burden on the employer.
Although it is accepted that certain roles simply cannot be done from the comfort of one’s home, it seems an employer will need, at the very least, to consider the request. As recently determined in Daly v Nano Nagle[2], the Supreme Court held that employers are expected to engage in a consultation process with the employee to examine the potential alternatives in light of their disability. Failure to appropriately examine such, may give rise to act of discrimination on the grounds of disability, for failing to reasonably accommodate the employee.
Furthermore, as outlined in An Executive v A University[3], where an employee’s role as an assistant lecturer, was “student facing”, was deemed to have been discriminated against on the grounds of reasonable accommodation, as the employer failed to permit the employee to work from home. It is important to note that this case was pre-COVID-19 and resulted in an awarded of €60,000 in favour of the employee, equivalent to 18 months remuneration. This case demonstrates the onerous duty an employer is faced with in light of Section 16 of the EEA and that irrespective the type of work, still requires their examination of whether the accommodation is financially disproportionate (as oppose to impractical).
In summation, where an employee is subject to an underlying condition, the employer should engage with the employee and explore the possibilities of working from home. At no stage should an employer blanketly refuse the option to work from home. Where an employer is not on notice of a pre-existing disability, they should ensure that the employee attends an occupational health assessment so as to ascertain the extent, if any, of the accommodation required. If an employee is unable to complete and/or discharge the majority of their duties from remote working, it should be noted that employers will not be expected to accommodate this request indefinitely and that such is only a temporary measure. However, if the option of remote working begins to become detrimental to the business and/or operational needs of the company, alternatives should then begin to be explored, such as social distancing measures in work and a phased return therein, or in the event where the employee refuses to entirely engage in a return to work process, place them on lay-off and/or unpaid leave.
Notwithstanding the above, if the employer deems the accommodation to be financially disproportionate, it remains to be seen what effect, if any, the “wage subsidy scheme” will have on the employers obligation to examine alternatives and whether same will be regarded as something, an employer, during COVID-19, should have considered to supplement any financial restraints posed by the suggested accommodation.
Remote working upon return from annual leave?
Where an employee is required to quarantine following their return from annual leave and are able to work remotely, the employer should ensure that the appropriate arrangements are put in place in advance of the employees leave and the express consent and/or acknowledgement of the proposed conditions be obtained from the employee prior to commencing same.
Where remote working is not plausible, many employers have begun implementing policies requiring employees to take annual, unpaid or other forms of leave in lieu of the Restricted Period. However this decision, is not without its risks (See below). It is therefore recommended that relevant leave policies be amended to reflect such impositions as well appropriate notice be given to employees, no less than 30 days from the proposed annual leave date.
Potential Liability
Employers should be conscious when taking action against an employee following their return from foreign travel, whether on the Green List or not. Depending on the circumstance, they may expose themselves to a penalisation claim under Section 26 of the 1997 Act. By virtue of this provision, an employer is prohibited from penalising an employee for attempting to invoke their rights under the 1997 Act[4]. In accordance with 1997 Act, penalisation in the context of annual leave may constitute any of the following:
- If an employer unreasonably refuses a request for annual leave[5];
- If the employer places the employee on lay-off or short time following their return from annual leave[6];
- If the employer requires the employee to work from home upon their return from annual leave[7].
If an employer is found to have penalised an employee, they shall be deemed liable to pay compensation to the affected employee anywhere up two years renumeration[8].
In addition to the above claim, if an employee is placed on forced unpaid leave or lay-off, the employee will be entitled to issue a claim for an unlawful deduction of their wages in respect of the Restricted Period as provided for under Section 5 (1) of the Payment of Wages Act 1991-2017 [“1991 Act”]. Unless the employee consents to being placed on unpaid leave or lay off[9], and in the absence of a contractual term expressly supporting these conditions following their return from foreign travel[10], an employer will be deemed to have breached the foregoing provision and be required to repay the employee’s salary in full[11].
For further queries regarding proposed amendments to annual leave policies and/or advices regarding COVID-19 travel, please do not hesitate to contact our offices.
[1] Section 20 (1)(b) of the 1997 Act – “The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— ( a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee”
[2] [2019] IESC 000
[3] [2020] ADJ-00022851
[4] Section 26 (1) (a) of the 1997 Act – “invoking any right conferred on him or her by this Act” and/or Section 26 (1) (d) of the 1997 Act – “giving notice of his or her intention to do any of the things referred to in the preceding paragraphs”
[5] Section 26 (5) (d) of the 1997 Act – “ imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty)”
[6] Section 26 (5) (a) of the 1997 Act – “suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal”
[7] Section 26 (5) (c) of the 1997 Act – “transfer of duties, change of location of place of work, reduction in wages or change in working hours”
[8] Section 27 (3) (c) of the 1997 Act – “ require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.”
[9] Section 5 (1) (c) of the 1991 Act – “in the case of a deduction, the employee has given his prior consent in writing to it.”
[10] Section 5 (1) (b) of the 1991 Act – “the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment”
[11] Section 6 (2) (b) of the 1991 Act – “An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.”
