Legal warnings over return to work
EMPLOYERS considering bringing staff back to work based on criteria such as age cut-offs or health status after the Covid-19 lockdown risk being sued on discrimination grounds.
Choosing who restarts work following the Covid crash will have to be done with regard to existing employment laws, according to Jeff Green, a partner in William Fry’s employment and benefits department.
A number of researchers, including Andrew Oswald of the University of Warwick in England, have advocated the phased return to work of people aged between 20 and 30 who are less likely to be vulnerable to the disease.
However, without a definitive scientific basis – for example, that young people are shown to be immune to Covid-19 – employment practices cannot discriminate as staff who have been temporarily laid off are re-hired, Mr Green said.
“The question has to be can the person do their job, including from home, if they have vulnerabilities,” he said.
The first litigation is now emerging in the United States where employees are suing their employers for not being proactive in protecting them from being infected by Covid19, he said.
Here, there is a high bar to such personal injuries actions, Mr Green said.
“The person must prove they were ill and that they were infected at work,” he said.
A lower threshold of proof applies in actions which can be taken by employers under health and safety rules through the Workplace
Relations Commission, he said.
Anyone taking a health and safety complaint has six months from the time of an incident to do so, which may see an uptick of activity in late summer and early autumn, he said.
For employers, the potential to fall into legal liability for staff is more likely as people return to workplaces in large numbers, he added.