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Coronavirus/COVID 19-the Employment Law Issues in Ireland


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

Reader Comments

  1. Ah Terry I was hoping you'd do a video like this I was going to ask you if you would be!! 😂 Thank you ❤️❤️

  2. Terry just some feedback , your video in the bottom right side of the screen as I view is blocking the text of your presentation at times.Also do you have Patreon or something akin to patreon ( where donation can be given ).

  3. Terry, good reasonable advise on employment, for boths parties. Many thanks for being ahead of the possie. Cov-19 is here, we are all vulnerable, especially the elderly, I include myself in that statement. Be safe and careful God bless

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