good morning this video I want to take a look at the employment law issues
arising from the coronavirus covered nineteen disaster
obviously all of us are feeling the pension and are going to feel the pinch
and it's difficult to know when the thing will be resolved all we can do at
the moment is listen to the best medical advice from the HSE and the public
health experts working for and with the HSE in this video however I'm going to
look at the employment law issues arising from the coronavirus and I know
this is causing a great degree of concern for a great many people so let's
take a look firstly I want to take a look at seven scenarios seven situations
that I've written about on my website employment rates Ireland calm this is
seven possible situations which may arise and it may I'm hoping to give some
clarity first one is where the employee contracts covered 19 so the employee
must go into self-isolation and the employees sick pay entitlements
if any will be those set out in the contract of employment and/or staff
handbook this will vary from job to job it will vary from industry to industry
for example some professionals some people some public servants for example
teachers HSE employees and so forth will have a sick pay scheme some sort of a
sick place game which may last for six months or 12 months or three months or
whatever generally it involves full pay for a
while on half pay for a while that's in a very low-key scenario or fortune
scenario for those employees most private sector employees however will
not be entitled to sick bay there will be no sick pay scheme in the
work in the job but if there is it will be set out in the contract or the staff
handbook there's generally no legal or statutory entitlement or obligation on
the employer to pay sick pay the employee may be entitled to illness
benefit from the Department of Employment Affairs and Social Protection
and the illness benefit situation has been
it has been improved fairly significantly in the last couple of
weeks second scenario I want to look at his employer closes the employee can
work from home well then the employee works he's entitled to be paid to simple
as that so he's employing or he's working from
home the employer has him closed the workplace it's the sort of a job that
can be done from home for example me I could do quite a bit from home however
if I was working in retail or someplace like that or cleaning or some sort of a
service industry of that nature well then clearly I can't work from home I
must close that's the problem but generally the employee is working
well then he or she is entitled to be paid the third scenario I want to look
at is the employer closes the workplace the employee cannot work from home the
employee unfortunately is not entitled to be paid now annual leaves may be a
situation may be possible to exhaust in other words it has untaken and you leave
it may be possible to on a temporary basis a limit to use up the annually
phone taken and accrued annual leave parental leave may also be an
opportunity or maybe a possibility the unpaid leave may be a possibility but
the options are not great the fourth situation is the employee cannot come to
work because she is caring for a person who has covered 19 force majeure leave
may apply both there's no guarantee of this the maximum amount of force majeure
leave in any event is three days in a 12-month period and the care must be of
a close family member with the employees presence indispensable in the
circumstance so that may or may not be the case force majeure is defined in the
legislation and it's defined quite tightly we'd have a look at that later
later on in this video but it's unlikely quite frankly that force majeure will
apply although the employer could accept that the force majeure situation without
getting to pernickety or too legalistic about it v v situation is there's no
public transport and the employee cannot get to work the employee from a legal
perspective is not entitled to be paid six the school closes and the
i'ma stay home to mine Children has child minding difficulties the employee
can continue working at home will then obviously entitled to be paid employee
cannot work from home not entitled to be paid and annual leave parental leave
unpaid leave may be possibilities may not depends on the circumstances but
bottom line is if the workplace is open and this work available will then
generally the employment contract obliges the employee to show up and work
if the employee returns from an affected area and is told to self isolate there's
no entitlement to pay unless she can he or she can work from home if he can well
and good he's our she is entitled to be paid there's new illness benefit
measures or new measures there in relation to illness benefits which have
only come into being since the coronavirus crisis has hit there's a six
day waiting period or there was a six day waiting period for assessment for
illness benefit that no longer plays the benefit has increased at three hundred
and five euros per week for a maximum of two weeks for an e-1 he medically
required self isolation or for the full absence from work on account of a
diagnosis of kovat 19:00 the normal social insurance requirements for
illness benefit will be changed or the means test for supplementary welfare
allowance will be removed but you need to check on the Department of Employment
Affairs and Social Protection website is plenty of information out there from the
various government departments to do with illness benefit layoffs and short
time are situations that are going to be more complex particularly now that there
is a significant campaign online I see this morning on Twitter to close the
pubs for example because there's quite a bit of criticism of pubs and hotels but
particularly problems where people are going out and are apparently not
engaging in social distancing or physical distancing which is required so
it is a possibility I suppose that problems will close or hotels will close
if that's the case you're looking at a layoff or short time situation perhaps
layoff is defined in the redundancy payments
legislation and it happens when the employer is temporarily unable to
provide work for the employee short time is the situation where the employer cuts
the wages or cuts the errors of the employee to less than 50% of the normal
hours or pay so what is the situation in relation to layoffs unpay at common law
the employer is not entitled to lay off without pay unless one there's a clause
in the contract allowing the layoffs or two there is an implied right to do so
the implied rights will derive from costume and practice in the industry or
in the particular employers business so it may be some precedent there by an
arch though the employer is not entitled to lay off without pay that is the
common law position however there is decided cases from the WRC and prior to
that from the rights commissioner and prior to that from the e8e and indeed
from the labor court and essentially they have held the decisions are
Authority for the proposition that there is an established practice in Ireland
that layoffs without pay can be permitted where it can be shown that it
is custom and practice in the industry or trade alternatives to layoffs or
short time would include annual leave unpaid or on take and rather an accrued
annual leave parental leave or unpaid leave redundancy entitlement may arise
in the situation of layoffs if the employee has been laid off or on short
time for four or more consecutive weeks or for six weeks in a 13 week period the
employee can serve an onus on the employer claiming an entitlement or
redundancy the employer however can dispute this and can serve a counter
office denying the redundancy if the II can give the employee 13 weeks work
without layoffs for a short time this work must be available within four weeks
of the employees notice so the employee serves the notice and says I'm entitled
a redundancy and the employer essentially says no it's a very
temporary nature and now I can give you work here's the notice and I can give
you 13 works weeks work without layoffs or short time the question of force
majeure then is something that might just arise in relation to
over 19 the argument might be made but I don't think there's a huge amount in it
however force majeure is defined generally as superior superior force and
it's afforded statutory protection in Irish law in the parental leave Act in
1998 so an employee shall be entitled to leave with pay from his or her
employment this is force majeure leave where for urgent family reasons or into
an injury to or the illness of a person specified in the subsection to the
immediate presence of the employee at the place where the person is is
indispensable this would cover for example a situation where a parent may
be critically ill and may be on the way out quite frankly in that situation then
there may be a force majeure leave situation arising also here there might
be a road traffic accident and somebody has been brought to hospital or
something of that nature but the definition is fairly narrow and
a lot of employees don't actually understand that and think that force
majeure will cover a whole lot of types of leave it won't really now it is
possible deport force majeure cause in an employment contract and some
executive type contracts of employment may contain such a force majeure clause
and most employment contracts will obviously refer to the statutory relief
provided for force majeure in the parental leave Act a force majeure
clause in a contract will usually have the effect of suspending the obligations
of one or both parties in certain exceptional circumstances that is to say
events like storms or earthquakes or other acts described as acts of God may
qualify as force majeure events as envisaged by the contract there's no
presumption in Irish law of a force majeure event however so the parties
need to specify what events are intended to be covered by the force majeure
clause this has to emphasize relates to a contract of employment and a specific
provision in a specific clause dealing with force majeure what without this
clarity without specifying what events are to be covered then the clause may be
unenforceable on the grounds that it is void
to the uncertainty and lack of clarity around us his covert 19-the coronavirus
then a force majeure event it's worth noting that the phrase force majeure has
no recognized or widely accepted meaning or definition in English law the
question therefore of whether covert 19 is a force majeure event is a question
that would almost certainly be determined by the particular
circumstances of the contract and what was envisaged what type of work was
involved where the performance of the contract was genuinely prevented by the
coronavirus and so forth the force majeure event again in relation to the
employment contract should be defined in the force majeure clause for example it
might say it means an event or a series of related events that is outside the
reasonable control of the party affected including power failures industrial
disputes affecting any third party changes to the law disasters explosions
fires floods riots terrorist acts and Wars these are
obviously force majeure events but a court will interpret the clause strictly
and narrowly nordicist and each party would normally be obliged to serve some
notice on the other party and informed the other party as soon as possible of
the difficulty or impossibility of performing the contract and suspending
it for a time the contract of employment may benefit both the employer and
employee by the inclusion of a force majeure clause however it's not a silver
bullet solution to the Cova 19 problem facing both employers and employees in
ireland i am trying to provide roll with the punches internals of the coronavirus
and i'm certainly following the best practice the best advice the best
medical advice and trying to engage in social or physical distancing in order
to prevent any spread of the virus so I am offering consultations by phone by
email by video now I will do an in-person one where it's necessary and
it is necessary in some situations where for example somebody needs to sign an
affidavit or where somebody needs to sign a contract for the sale or purchase
of a house that's no difficulty but by and large we are doing consultations or
trying to get the consultations phone email video consultation with me
costs a hundred euros and there's more details on my website business and legal
that I he where employment rights Ireland calm both I'm a solicitor and
and field I hope you find this video useful if you do you might give us the
thumbs up down below and you may be interested in subscribing to my youtube
channel and I would ask you to share the video and with anyone who you think
might benefit from us but most of all I would encourage you to please follow the
legal or follow the medical advice from the doctors and do what they tell you in
terms of trying to prevent the spread of the corona virus and hopefully within a
matter of months or certainly within perhaps even a matter of weeks we'll all
have this behind us and we'll all be trading war stories about what it was
like during the corona virus crisis but for now we all have a part to play we
all have a small role to play and that involves washing our hands practicing
good hygiene and engaging in practicing social exclusion or social distancing
rather physical distancing and when I say physical distancing I mean staying
away from somebody else if you can do do that and obviously social distancing
isn't so important because you can actually maintain a social proximity
with somebody through email or through phone or through video or through Skype
or whatever so I think the physical distancing is more important to say I
hope you find this video useful if you do you might give us a thumbs up down
below thanks for your time