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'Ready, willing and able' under COVID-19 lockdown?

By Aimee Elia - 9 Jul 2020

Employers who were unable to access their premises during level 4 lockdown had to grapple with their obligations to employees who were unable to work from home. Many sought advice on this either directly from legal professionals or from the flurry of information that was flooding the online employment sphere at the time.

Unfortunately, the messages received were not always uniform. In particular, the concept of "ready, willing and able" was tested. Some advisors took the position that employees who were "unable" to enter the workplace due to the lockdown restrictions were not entitled to be paid. Others took the opposing view and advised that such workers were entitled to be paid as, but for the lockdown, they were otherwise "able" to work.

On 30 June the Employment Relations Authority published a decision in the case of Raggett & Ors v Eastern Bays Hospice Trust which came down firmly on the side of paying wages to employees who found themselves unable to work due to the lockdown restrictions on the grounds that: "but for the intervening event of COVID-19, the employees were able to fulfil their obligations under the employment agreements".

The Authority's decision affirms the advice given by Martelli McKegg during the lockdown and unless an appeal authority finds differently, we recommend that employers adopt this position going forward should another lockdown occur or if any other event prevents employees from accessing the workplace.

However, should the need arise, you should look first to the terms of your individual employment agreements to ascertain whether or not the express terms of the agreement provide for the situation you are faced with. If not, then we suggest you follow the lead of the Authority and pay your employees in accordance with the terms of the employment agreement, or as varied by agreement following consultation.

If you require advice on any of these issues, please contact Aimee Elia or Andrew Steele.

 

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