The Complainant claimed was constructively dismissed from her employment. The Complainant’s role was that of coordinator and she provided support to the client university Accommodation Manager. The role involved checking in and out as well as maintenance. The client employed front of house staff and there were three (apparently interchangeable) coordinators, all of whom worked office hours.

The Complainant highlighted that as a result of the Covid-19 pandemic she had to deal with the impact of students leaving their accommodation. About 10% of the accommodation, however, remained occupied throughout this period. The Complainant then availed of certified sick leave.  She argued that it was only after her return from sick leave on the 11th of May 2020 that the Respondent did anything to address the concerns regarding Covid-19. The Complainant outlined that she had raised her request to work from home as part of the grievance. The Complainant said that her main concern was the well-being of her husband and father-in-law, both of whom had underlying health conditions. She explained the nature of the work and suggested the option of rotating the three coordinators' presence in the office. The Respondent informed her that measures had been put into place, but this was apparently not the case.

The Respondent's Managing Director said that the Complainant was of the opinion that she should work from home, but that the client would not have allowed this to happen. He said that her job was essential and further outlined that it was the coordinators’ role to deal with the students and therefore they were required to be on campus.

In the Complainant’s emailed resignation of the 12th of May 2020, the Complainant referred to the Respondent’s treatment of her as "stressful and pushy". She said that her "anxiety and stress levels have once again increased [on returning to work] and on this occasion have caused me to experience panic attacks which are having a great impact on my overall wellbeing."

The Adjudication Officer affirmed that this particular case did not relate to a general right to work from home or to work remotely and that it related to the circumstances of the Covid-19 pandemic. The question was whether the Complainant was constructively dismissed, following a repudiation of her contract of employment and if it was reasonable for her to resign in those circumstances. The Adjudication Officer noted that, "As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles."

The Adjudication Officer further noted that, "Compliance with these statutory duties is an implied term of the Complainant’s contract of employment and significant non-compliance could represent repudiation of that contract or mean that it was reasonable for her to resign."

In particular, the Adjudication Officer concluded, "I note that the respondent proposed physical or PPE related mitigation measures, for example using now-empty desks elsewhere in the building. This, however, effectively inverts the pyramid-structure hierarchy of control, where elimination of risk is the first order of action. Physical mitigation or PPE are not alternatives to elimination of risk, as after all, it would only take one failure to comply or a mechanical failure for the disease to spread. I note from the photographs that this was a confined office space, even with the mitigation. I find that the respondent did not adequately consider the elimination of risk that would have been achieved through the proposal made by the operations coordinators. That proposal [ to rotate the presence of operations coordinators do online work remotely] would have eliminated the risk of transmission between the three operations coordinators and reduced their risk of contracting or of transmitting the disease to others."

Accordingly, the Adjudication Officer found that the Complainant was entitled to consider herself to have been constructively dismissed. The Respondent’s failure to at least trial the Complainant’s reasonable suggestion to work from home meant he failed in his duty of care as an employer towards his employees. The Adjudication Officer held that the Complainant was entitled to compensation equivalent to five weeks' pay (the period she was without employment following the termination of the contract), which amounted to €3,712.50.
https://www.workplacerelations.ie/en/cases/2021/january/adj-00028293.html